The employee had worked for the employer as a painter since 7 April 2003. Due to worsening shoulder complaints, he asked his employer in February 2019 whether he could work one day less per week. Although the employer agreed, it unilaterally changed the start date of this arrangement three times. On 18 November 2019, the employee reported sick with a shoulder inflammation.
In early 2020, the employer repeatedly called on the employee to carry out suitable work. The company doctor found him unable to do so. The employer also proposed ending the employment contract, which the employee did not agree to.
In the summer of 2020, colleagues informed the employer of rumours that the employee was doing work at home during his sick leave (after his shoulder surgery). The employer then engaged a private investigation agency to observe the employee at home. On 30 September 2020, the employee received an official warning.
On 24 October 2020, the company doctor found there was a complex absence situation and a labour conflict, and recommended mediation. On 19 November 2021, the employee was awarded a WIA disability benefit. On 30 April 2022, the employer terminated the employee’s contract with UWV permission.
The employee asked the subdistrict court to award fair compensation and non-material damages.
Private investigation agency
The subdistrict court stated at the outset that engaging a private investigation agency is a far-reaching measure that should not be used lightly. Monitoring an employee without their knowledge is only justified in very special circumstances – where serious suspicions of serious violations have arisen that make investigation outside the employee’s knowledge necessary. That was not the case here, so using the agency was wholly disproportionate. This constituted a serious violation of the employee’s privacy.
Official warning
The official warning that followed the use of the investigation agency caused a major breakdown of trust for the employee, and significantly worsened his existing psychological complaints. The employer had acted in a seriously culpable manner.
Onset and continuation of medical complaints
The subdistrict court further ruled that the employer was seriously at fault for the onset and continuation of the employee’s medical complaints, which also led to the termination of the employment contract. The employer could have responded more adequately to the employee’s request to work one day less. It also failed to start a mediation process (despite the company doctor’s advice). Moreover, by pushing for termination of the contract or a return to work, the employer gave insufficient weight to the employee’s psychological difficulties.
Fair compensation
Due to this seriously culpable conduct, the employer had to pay the employee fair compensation of EUR 55,000 (EUR 30,000 for loss of income plus EUR 25,000 for non-material damages).
For the full ruling: click here (in Dutch).
Questions about the above?
Please contact one of Sørensen Advocaten’s employment lawyers. Call: +31 (0)10-2492444
