Unfit for work before the first working day

You hire someone. The probationary period goes well. And then... after a few months, things go wrong: complaints, absenteeism, long-term incapacity for work. That one thought quickly pops into your head: “Wait a minute... didn't this employee already know this before he started working for us?”

In a recent ruling by the Amsterdam Court of Appeal, an employer tried to capitalize on that very thought by seeking to have the employment contract annulled out of court on the grounds of error. The employer also claimed back the wages paid during the period of illness. The court did not agree.

What happened?

The employee was hired as a mechanic. After some time, he began calling in sick frequently and eventually took a long-term leave of absence. The employer then claimed that when the employee entered into the employment contract, he knew or should have known that his health condition was such that it would severely and permanently limit his ability to work. According to the employer, the employee wrongfully concealed this information, which meant that the employment contract was voidable on the grounds of error. 

The employee contested this. 

Ultimately, the Court ruled that error is possible in employment matters, but that the employer must be able to demonstrate that:

1. the employee had information about his health when entering into the contract, and;
2. he knew or should have known that this would significantly and permanently hinder him in the agreed  position, and;
3. he should therefore have informed the employer.

And all of these points went wrong. The employee did have a history of complaints and examinations, but the diagnosis (a rare and chronic condition) only came later, after he had started working for his employer. Moreover, prior to starting work and for months afterwards, he had been doing physical work and had even performed well during his probationary period. No long-term treatment or rehabilitation program had been started prior to his employment. This made it difficult to say in retrospect: “You already knew at the time that the position of mechanic would not work out.”

The court ultimately ruled that the employer's claim of error was unsuccessful and that the employment contract could not be terminated out of court and therefore remained in force. As a result, the employee retained his entitlement to (back) pay. In addition, the employer had to pay the statutory increase on top of the back pay (the Court increased this to the full 50% instead of the more moderate 20% previously set by the subdistrict court) and the employer was also liable for the legal costs. In short: error sounds simple, but it can be costly. 

If you have any questions about incapacity for work, reintegration, or dismissal, please contact Dennis Oud, Tessa Sipkema, or Elke Hofman.

The full judgments can be read here.