From which date is the employee incapacitated for work within the meaning of Article 7:629 of the Dutch Civil Code? Is it the date of reporting sick (ziekmelding) or the date from which the employee is actually incapacitated for work?
Being ill vs being incapacitated for work
A subtle difference, but a difference nonetheless. The District Court Noord-Holland explained this in the ruling of 7 June 2023:
"Someone who is ill is not necessarily incapacitated for work. An employee is incapacitated for work if the employee cannot perform 'his work' in the sense of the 'stipulated work' (in terms of work size and content). The moment of reporting sick does not always say something about the start of the employee's incapacity for work."
Prohibition against terminating employment
Why was this difference so important? Article 7:670, paragraph 1 of the Dutch Civil Code, contains a prohibition against terminating an employment contract when the employee is unfit to perform his work due to illness. The employer argued that this period started on 27 September 2022, when the employee reported sick, and requested the court to terminate the employment from that date.
Moment of incapacitated for work
However, in this case, the employee had a phone call with the employer on 21 September 2022 about the workload that he experienced and about the planned presentation the following day, which he did not want to attend. According to the court, the parties agreed during this phone call that making and giving these presentations were part of the employee's usual (and stipulated) work. Therefore, the district court concluded that this showed that the employee could not perform his stipulated work from at least 21 September 2022 and could, from that date, be regarded as incapacitated for work within the meaning of Article 7:629 of the Dutch Civil Code.
So, contrary to the employer's arguments, the employment contract could not be terminated from 27 September 2022 because the prohibition on termination under Article 7:670(1) of the Dutch Civil Code prevented the termination request from being granted.