Introduction
May an employer determine whether an employee is really sick? The answer is clear: no. Only a company doctor or occupational health physician has the authority to determine whether an employee is unfit for work. Yet employers still regularly make mistakes in this respect. A recent ruling by the subdistrict court in Nijmegen underlined this once again.
Only company doctor assesses illness
In a recent dismissal case, an employee had been fired for attending two events during her illness: a Japanese market and a car show. The employer found this incompatible with being sick. However, the court ruled that it is not up to the employer to judge whether someone is really sick. That is exclusively reserved for the company doctor.
The employee had reported sick correctly, and as long as the company doctor does not invalidate the sick report, the employer must accept it. Thus, making one's own judgments about one's health is not allowed.
What are the rules around calling in sick?
Although these rules have been around for a long time, they are still regularly misapplied in practice. The main principles are:
- The employee reports sick according to the procedures established by the employer, such as by telephone before the start of the workday
- There is no requirement to provide a medical certificate from a general practitioner or specialist
- The employer may not refuse a sick call based on its own judgment
- When in doubt, the employer should consult a company doctor or occupational health physician
Only after an independent doctor examines the employee can it be determined if there is disability. Until then, the sick report is considered valid.
Why is this way of working important?
When an employer independently draws conclusions about illness and attaches consequences - for example, suspending pay, refusing reintegration, or even proceeding to dismiss - he is acting in violation of employment law. This can have far-reaching consequences:
- The court may annul the dismissal
- The employer may be ordered to continue to pay wages retroactively
- Damages may be awarded for wrongful conduct
In the case from Nijmegen, for example, the employer had not consulted a doctor. This proved decisive: the court held that the sick report had to be upheld and that the dismissal had been unjustified.
Conclusion
The assessment of illness lies solely with an expert physician, not the employer. Even if a situation raises questions, such as the employee being seen out of work, the employer may not itself conclude that someone is not sick. Only a company doctor can determine whether there is incapacity for work. By acting carefully and following the correct procedure, legal risks are reduced and conflicts are avoided.
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 control during illness. Please feel free to contact us .
April 2025
