What do you do when an employee calls in sick and you suspect otherwise? In a recent case, the subdistrict court ruled that when in doubt, an employer may not conclude on its own that an employee is not sick, even with the help of a doctor friend. Only the company doctor may judge whether a sick report is justified. In this case, it led to the annulment of a summary dismissal.
Concert after sick call
This case revolved around an employee who called in sick with burnout symptoms in late November 2023. Shortly thereafter, he attended a concert. The employer did not trust the sick report from the beginning and, partly on the advice of a doctor friend, decided to summarily dismiss the employee on December 15, 2023. According to the doctor friend, a person with burnout could not possibly feel a need to go to a concert.
No company doctor engaged
The judge gave short shrift to this reasoning. Indeed, the employer had failed to involve the company doctor. This is crucial. By law, only a company doctor is authorized to assess whether an employee is actually unfit for work. In doing so, the doctor must also have spoken to the employee himself to arrive at a responsible judgment.
The doctor friend in this case had never seen the employee in person. In doing so, the friendly doctor did not appear to be that company's company doctor. Thus, there was no medical basis for the dismissal. Moreover, the concert attendance was not considered proof that the employee was not sick. That judgment is up to the company doctor, not the employer.
No urgent reason for dismissal
Because no company doctor was involved, the judge found that the instant dismissal was invalid. The concert attendance, without further medical assessment, did not provide an urgent reason. Nor had the employee refused work. The judge stated that the employer could have sufficed with a lighter measure, such as a salary suspension.
Effects on the employer
The judge overturned the instant dismissal and ruled that the employment had therefore continued as usual. The employer still had to pay wages from Dec. 16, 2023, including statutory increase (up to a maximum of 30%) and interest. He also had to provide wage statements and reimburse litigation costs.
As an employer, what can you do when in doubt?
Are you in doubt about calling in sick? Then it is important to call in the company doctor immediately. He or she will assess whether you are unfit for work and give advice on suitable employment. Only on the basis of that assessment can you take further steps. If you, as an employer, anticipate this yourself, you risk a wrongful dismissal and corresponding financial damage.
Conclusion
A sick report that leaves you in doubt as an employer can be quite frustrating, especially if you suspect something is wrong but have no proof. Yet the legal route is crystal clear: only the company doctor may assess whether an employee is actually unfit for work and therefore whether the sick report is justified. If, as an employer, you draw your own conclusions or act on gut feelings or external advice without the intervention of a company doctor, you run a considerable risk in legal proceedings. So make sure that when in doubt, you always act quickly and carefully, and base your decisions solely on the opinion of a competent company doctor.
This blog was written by mr. Stijn Blom, employment lawyer at Arbeidsadvocaat.nl B.V. Stijn has extensive experience in employment law and supports entrepreneurs and employees on a daily basis with a variety of employment law issues. From dismissal cases to drafting watertight contracts and regulations - with his practical and personal approach, he helps employers and employees move forward. Want to know more? Visit Stijn's page.
Arbeidsadvocaat.nl is happy to think with you if you have questions about sick leave and wage freeze or wage suspension. Please feel free to contact us .
April 2025
