Serving beer while on sick leave: when is immediate dismissal too harsh?

In a previous blog post, I discussed a case in which a sick employee was observed driving, carrying bags, and even working elsewhere while on sick leave. The judge ruled that he had not been honest about his ability to work and upheld the summary dismissal: trust had been irreparably damaged.

In a recent ruling involving a sick warehouse worker who spent one evening pouring beers at a friend’s bar, the outcome was different. The employer reacted with outrage: no energy for his own work, but plenty for a lively party. The employee was summarily dismissed. The subdistrict court understood the employer’s indignation but found summary dismissal excessive in this case. The employee had since accepted the dismissal, so the employment contract was not reinstated. However, the labor court judge ruled that there was no urgent cause for dismissal and awarded fair compensation of € 10,000 gross, the transition allowance, fixed damages for failure to observe the notice period, and reimbursement for the actual legal costs incurred. All told, a total of approximately € 19,000.

The difference: honesty versus medical assessment

The first case revolved around transparency and consistency. The employee claimed he was unable to work, but his behavior suggested otherwise. The employer was justified in taking strong action precisely because reintegration can only succeed if an employee is honest about his capabilities.

In the “beer case,” the focus was on something else: whether working in a bar was medically compatible with the employee’s symptoms. That is not a matter of feeling or outrage, but in principle a medical judgment. That assessment belongs with the company doctor, not with the employer. Without that medical judgment and without first attempting a less drastic measure (such as a warning, suspension of pay, or pay freeze), summary dismissal was a step too far.

An expensive lesson for employers

The outcome: while the summary dismissal in the first case was justified, that was not the case in the beer shop case. Helping out in the pub for one evening thus became an expensive lesson for the employer.

The common thread between both rulings: in cases of illness, an employee may be expected to be as honest as possible about their ability to work. At the same time, an employer may be expected to refer medical questions to the company doctor and reserve the most severe sanction for exceptional cases.

Questions about summary dismissal during illness? Please contact Tessa Sipkema, Elke Hofman-Bijvank, Noa Bilogrević, or me.

You can read the previous blog here and the ruling here.