Many employers encounter it sooner or later: a workplace conflict. Enormously inefficient and potentially very costly. Previously, the company doctor, based on the STECR guidelines, only came into the picture once the situation resulted in a sick-leave report. With the introduction of the guideline ‘conflicts in the work situation‘ of the Netherlands Society of Occupational Medicine (NVAB), the company doctor can act proactively by intervening even before a sick-leave report. That sounds nice, but could prove costly for the employer. In this article, we briefly discuss the existing STECR guidelines and then which powers the company doctor gains under the new NVAB guideline.

STECR guidelines for workplace conflicts
One speaks of a workplace conflict when, within the company or organisation, at least one person feels that they are being thwarted or annoyed by another person or group. When there is a (looming) workplace conflict and an employee then reports sick, the employer will often have doubts about that sick-leave report. However, the employer may not dispute an employee’s sick-leave report. This is because the employer has no medical knowledge and also has no access to the employee’s medical data. For that reason, only a company doctor may determine whether there is illness and incapacity for work.

If a company doctor, upon a sick-leave report, concludes that there is a workplace conflict, they have so far always based this on the STECR guidelines. The STECR guidelines were drawn up by the Stichting Expertisecentrum Participatie (Foundation Centre of Expertise on Participation). These describe how company doctors and other occupational health professionals should handle an employee’s sick-leave report that may be related to a workplace conflict. The STECR guidelines have no statutory status, but are applied in practice, even by judges.

In the case of a conflict combined with a sick-leave report, the STECR guidelines distinguish 3 situations, namely: (1) workplace conflict without illness, (2) workplace conflict combined with illness, and (3) illness and no workplace conflict. The first two in particular are relevant for this blog.

Workplace conflict without illness
In the case of a (looming) workplace conflict, it often happens that an employee reports sick while there is, in fact, no illness preventing them from doing the work. The company doctor will then, once emotions are back under control, advise a return to work. The underlying problem must, of course, still be voiced and resolved.

Mediation
The company doctor will not otherwise get too involved in this. In serious cases where a great deal is at stake and emotions run high, a mediator will need to be brought in to resolve the conflict. To safeguard quality, incidentally, a statutory register for recognised mediators will soon be introduced. The purpose of the mediator is to ensure that parties start working together again and trust is restored, or otherwise part ways in a proper manner. In the latter case, this is also sometimes called exit mediation. It is then advisable to bring in a lawyer as well, so that they can advise you when concluding a termination agreement.

Time-out
If emotions are not under control, the company doctor will, in accordance with the STECR guidelines, initially not prescribe an immediate return to work, even though the employee is, strictly speaking, not medically unfit to work. In that case, a break of one week or a maximum of two weeks is usually advised: the so-called intervention period (also called a time-out). Since there is no incapacity for work due to illness here, this effectively amounts to a release from work with continued pay.

Illness combined with a workplace conflict
When there is a workplace conflict and the employee is actually ill, i.e. physically or mentally no longer able to work, the company doctor will, in accordance with the STECR guidelines, still advise that the parties enter into consultation with each other, despite the incapacity for work. After all, solving the problem could contribute to the employee’s recovery. Here too, mediation can be advised. However, terminating the employment contract during the first 2 years of incapacity for work is not an option because of the prohibition on dismissal during illness. If the employee cooperates with terminating the employment contract, they cannot claim Sickness Benefits Act (Ziektewet) benefits.

Termination still possible
Even so, this can eventually work towards a recovery report and a termination agreement, whereby, for example, a departure date is agreed at a later point in time, so that the employee has time to recover. The employee can then look for a new job and go work elsewhere. Such arrangements can certainly be made, but do require legal guidance.

New NVAB guidelines as a second tool for workplace conflicts
As mentioned, the STECR guidelines are mainly aimed at action in the event of a sick-leave report. In practice, this means that company doctors often only determine whether there was incapacity for work. In the case of a workplace conflict, the occupational health physician then advises that the parties must talk to each other. That is therefore mainly a legal approach. Under the STECR guidelines, company doctors are too reticent about advising mediation and intervention periods.

The NVAB has therefore since developed a different view of workplace conflicts than STECR. The NVAB has drawn up guidelines based on extensive scientific research into the risks and important factors in workplace conflicts. The NVAB guideline has already been in effect since 1 July 2019 but is still not widely known. The NVAB guideline should be seen as a second tool alongside the STECR guide, not so much as a replacement for it. This NVAB guideline takes a more systematic approach.

First, in the event of a workplace conflict, the company doctor must determine to what extent the conflict has escalated. Next, the conflict-management style of both parties must be determined (avoiding, giving in, forcing, collaborating, compromising). Depending on this, the company doctor will formulate advice that may consist of interventions, preventive advice, or interventions and evaluations. Compared to the STECR guidelines, the company doctor gets a bigger role, particularly in the area of preventive interventions. So you may also hold the company doctor to that bigger role, because company doctors sometimes still remain rather uninvolved.

Preventive intervention
Unlike the STECR guideline, under the NVAB guideline the company doctor can act even before there is a sick-leave report. He does this by conducting an annual so-called Risk Inventory and Evaluation and carrying out a preventive medical examination. In doing so, the company doctor looks in particular at the ‘predictors’ of conflicts. If this research shows that, within 1 year, 20% of employees have experienced a conflict, the company doctor can even make a recommendation to the employer. A recommendation is a preventive intervention. If it turns out that a (part of a) company is prone to conflict, the company doctor could, for example, advise intensive management training.

Leader of the conflict
When there is a sick-leave report combined with a workplace conflict, under the NVAB guideline the company doctor also gets a more leading role that must contribute to resolving the conflict. First, the company doctor must make a conflict diagnosis and a medical diagnosis. In doing so, the company doctor will investigate what kind of conflict is at play and in which phase the conflict is. The company doctor will also determine which ‘conflict-management style’ the parties involved employ. Based solely on the fact that a party has an unfavourable conflict-management style, the company doctor can advise that one or both parties (independently of each other) undergo intensive conflict-management training.

The company doctor then determines which phase the conflict can be classified into: the rational phase, the emotional phase, or the fighting phase. Based on this, the company doctor then makes a recommendation. If the conflict is in one of the first 2 phases, the company doctor can advise a psychologist or company social worker. In addition, it can also be advised to have a conversation with an (internal or external) facilitator. Are there heightened emotions? Then the company doctor can also advise release from work with continued salary in order to de-escalate the conflict. In the emotional phase, the company doctor can also advise engaging a ‘heavier’ independent facilitator, such as a mediator. In the last phase, the fighting phase, the company doctor can ultimately also advise mediation, but then with the aim that the parties part by mutual consent (exit mediation).

Legal significance of the guidelines
The NVAB guidelines are, in principle, merely recommendations that company doctors must meet in order to provide good-quality advice and care. However, once authorised by a professional association, a guideline is regarded as part of the ‘professional standard’. Company doctors will therefore not readily deviate from it. This is possible in certain situations, but then they will have to justify and document this. Deviating from a company doctor’s advice, as an employer, is not advisable. When the situation escalates as far as court, judges are not very lenient with employers who have not followed the company doctor’s advice. In addition, in the case of long-term illness, you run the risk of the UWV imposing a wage sanction because you made insufficient reintegration efforts. You may then be required to continue paying the employee’s wages even after two years of illness.

Conclusion
Company doctors felt limited in their options to impose interventions. The NVAB guideline now gives company doctors more room for this. Logically, this could result in more interventions between employer and employee. On the one hand, this can prevent the employee from unnecessarily reporting sick or remaining sick, or the employment contract ending (in conflict). On the other hand, the employer will more often be confronted with advice unfavourable to them. Conflict-management training, release from work, mediation: these are all costly processes that not every employer can and wants to fund. Further escalation, however, can be far more costly still. Should such a situation arise, it is always wise to engage a lawyer. As experts, we can guide you entirely independently through the jungle of rules and steer you tactically on which step to take when.

Questions or advice?
Do you have questions about the above, reporting sick during a workplace conflict, or do you need advice or support? Then contact us by filling in this contact form or calling: 020-3450152.

The corporate legal advisers at The Legal Company specialise in employment law (including reporting sick during a workplace conflict), contract law, company law and privacy law.

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.