Can an employer freeze a sick employee's wage if the employee doesn't agree to its proposal to terminate employment?
Wage freeze
A sick (incapacitated) employee is entitled to continued payment of wages during the first two years of sickness (incapacity) for work, stated in Article 7:629, paragraph 1 of the Dutch Civil Code. Sometimes, the employer may apply a wage freeze (loonstop).
Article 7:629, paragraph 3 of the Dutch Civil Code lists the cases in which an employer may apply a wage freeze concerning an incapacitated employee. One of which is that an employee does not have the right to continue to pay his wages during illness during the period that he refuses to cooperate without proper grounds with reasonable regulations given by the company doctor aimed at enabling the employee to perform appropriate work.
Hindering recovery
In this case, before the District Court Rotterdam, the employer applied a wage freeze because the employee did not agree to her proposal to terminate employment and did not make a counteroffer. The employer argued that by doing so, the employee did not cooperate with the company doctor's advice and therefore hindered his recovery.
The court, however, did not agree with this reasoning. Article 7:629, paragraph 3 of the Dutch Civil Code exhaustively lists the cases in which an employer may apply a wage freeze concerning an incapacitated employee. So contrary to the employer's opinion, these rules refer to 'regulations or advice from the company doctor aimed at the reintegration of an employee. This does not include the advice to reach a solution in mutual consultation' or how the employer understood it: 'coming to an end to the employment contract in mutual consultation'.
So, failure to comply with a termination proposal from the employer does not mean that an employee hinders or delays his recovery, as referred to in Article 7:629 Dutch Civil Code.
The court concluded that the employer wrongly applied the wage freeze and granted the employee's wage claim.