Can an employee claim fair compensation if the employer does too little on reintegration?

Employment Law, Contract Law, Corporate Law

13 February 2020

Can an employee claim fair compensation if the employer does too little on reintegration?

Stelt u zich eens voor: u werkt al jaren met dezelfde zelfstandige. Hij stuurt facturen, factureert btw en heeft een eigen kvk-nummer. Toch krijgt u in 2026 ineens vragen van de Belastingdienst over de aard van uw samenwerking. Hoe heeft het zo ver kunnen komen?

There are many rules surrounding the reintegration of sick employees. In addition, the company doctor’s advice is often not clear enough, making it difficult for the employer to give concrete shape to reintegration and offer suitable work. Even so, the employer ultimately remains the party with final responsibility for reintegration, even when the employee does not cooperate sufficiently. If the employer makes insufficient effort, the UWV can even impose a wage sanction, meaning the employer will have to continue paying wages for a further year. Recently, in an interesting case before the Amsterdam Court of Appeal, the following question arose: if the employer receives a wage sanction, does that also mean it has acted seriously culpably, entitling the employee to claim fair compensation? In this blog, we explain step by step how this works.

How did continued wage payment and reintegration work again?

When an employee reports sick, they are entitled to continued payment of wages. If that illness continues for a longer period (more than 6 weeks), the employer must also start making efforts to reintegrate the sick employee into their own role or another suitable role within the company (the so-called “first track”). Should that not succeed, an attempt must be made to reintegrate the employee with another employer (second track) no later than from the 12th month. With this, the government wants to prevent the employee from ultimately claiming a WIA/WGA benefit. The precise reintegration obligations are set out in the Gatekeeper Improvement Act (Wet Poortwachter). If the employee does not cooperate sufficiently with reintegration, the employer may not, for example, simply sit back. The employer will then have to actively urge the employee to cooperate, for example by suspending wages. The initiative to act therefore lies with the employer. In the event of a difference of opinion, an independent expert opinion can, if necessary, be requested from the UWV.

And what about the UWV’s wage sanction for insufficient effort?

The employer’s obligation to continue paying wages lasts, in principle, for a maximum of 104 weeks (2 years). After the continued-wage-payment obligation has ended, the employment can also be terminated via the UWV upon payment of the transition payment (compensated by the UWV). If it is expected that the employee’s illness will indeed persist for two years, a WIA benefit must be applied for on the employee’s behalf with the UWV. The UWV then assesses whether the employer and employee have done enough to get the employee back to work. The employer bears final responsibility for the outcome of reintegration. If it turns out that insufficient effort has been made and the employer has not been strict enough, the UWV can impose a wage sanction. This means that, after the 2 years of illness end, the employer must continue paying wages for up to one more year.

De Bijenkorf ruling of the Amsterdam Court of Appeal

Last December, the Amsterdam Court of Appeal issued an interesting ruling in a case in which the UWV had imposed a wage sanction on De Bijenkorf. This concerned a sick employee for whom, after some time, the second-track process had been started, because, according to the company doctor, returning to her old role was not possible. The UWV subsequently concluded, in an expert opinion, that De Bijenkorf had fallen short in the reintegration. The UWV then imposed a wage sanction on De Bijenkorf.

So what was so special about this ruling? More than three years after the first sick-leave report, De Bijenkorf went to the subdistrict court to have the employment contract dissolved. On appeal before the Amsterdam Court of Appeal, the employee claimed fair compensation of €75,000 on the grounds that De Bijenkorf had acted seriously culpably. According to the employee, the company doctor engaged had given incorrect advice, and De Bijenkorf had thereby knowingly and deliberately delayed the reintegration.

According to the court, the above conduct by De Bijenkorf is indeed one of the reasons why the UWV imposed a wage sanction. However, the fair compensation claim is rejected. De Bijenkorf has, after all, already received a punishment in the form of the wage sanction, whereby it has to continue paying wages for longer. This is to the employee’s benefit.

Practical advice

The fact that a wage sanction is imposed by the UWV fortunately does not automatically mean the employer has also acted seriously culpably and must therefore pay fair compensation. For that, more needs to be going on, for example that the employer does nothing at all about reintegration, or that the employee, because of the employer’s conduct, has missed concrete opportunities to return to work.

As an employer, it is wise to closely monitor the reintegration process and stay in the lead. Therefore, communicate well with the occupational health service and put questions to the occupational health service in writing when things are unclear. Sometimes seek external advice from a legal expert. In this way, a piece of legal file is also built up to demonstrate that you have made sufficient effort with the reintegration. If the employee does not cooperate with following up on the occupational health physician’s advice, action must be taken immediately. It is wise to always have a legal eye look at this, to prevent you from writing the wrong letters and taking the wrong measures, which would further worsen the situation. Ultimately, as an employer, you bear final responsibility for the outcome of reintegration. If the UWV finds this insufficient, and this is attributable to you, the wage sanction can require you to keep paying wages for yet another year. Fair compensation can be added to that on top if you have, moreover, acted seriously culpably, but that is still something different from making insufficient effort or not being strict enough. That threshold is set quite high.

Nothing changes as often as laws and regulations. We would like to point out that our blogs may no longer be in line with current laws and regulations and may therefore be outdated. If you have questions or a problem relating to this blog, or if you require legal assistance, please contact us.

De afgelopen jaren stonden in het teken van de Wet VBAR, het wetsvoorstel dat een einde moest maken aan onduidelijkheid over de zzp’er. Het kabinet heeft delen van dat voorstel inmiddels geschrapt. Op het eerste gezicht is dat goed nieuws: minder regels, minder administratieve last. Maar in de praktijk blijven dezelfde toetsen overeind.

“De inhoud van de samenwerking is leidend, niet wat er op papier staat.”

De Belastingdienst handhaaft sinds 1 januari 2025 weer actief op schijnzelfstandigheid. En recente uitspraken van de Hoge Raad bevestigen dat rechters strikt toetsen of er sprake is van ondergeschiktheid en gezagsverhouding.

Voor uw praktijk betekent dit drie dingen. Een: leg de samenwerking duidelijk vast, met aandacht voor de inhoud. Twee: voorkom dat een zzp’er feitelijk werkt als werknemer. Drie: wees voorbereid op een controle, en weet hoe u de relatie kunt herzien als dat moet.

Heeft u vragen over uw concrete situatie? Wij sparren dagelijks met opdrachtgevers over hun zzp-relaties. Vraag een offerte op of bekijk onze Legal Safe abonnementen.