ការឈឺ ឬការឈប់សម្រាកដោយស្ងាត់ស្ងៀម៖ របៀបដែលច្បាប់ការងារហូឡង់កំណត់ព្រំដែន

Under Dutch employment law, whether an employee is sick or simply disengaged is not decided by the employer: incapacity for work (arbeidsongeschiktheid) is assessed by the company doctor (bedrijfsarts), and it triggers continued payment of wages under Article 7:629 of the Dutch Civil Code (BW), a reintegration process and a ban on dismissal by notice. ឈប់ស្ងាត់ is behaviour, not a condition; it has no legal status and is handled through performance management and, if needed, the dismissal grounds of Article 7:669 BW.

This page explains how to tell the two apart, what an employer owes a sick employee, the difference between suspending and stopping wages, what you may ask about health, and what to do when the problem turns out to be performance.

How do you tell sickness and disengagement apart?

By following the sickness procedure, whatever you suspect. An employer’s opinion about an employee’s health has no legal weight; only the company doctor can assess incapacity.

Both situations can look the same: output drops, absences increase and the employee is harder to reach. Treating a sick employee as unwilling breaches the duty to pay wages and creates a claim; treating a disengaged employee as sick can cost up to two years of wages. Acting on a suspicion before the company doctor has assessed the employee is the most expensive mistake in this area.

What does the law distinguish?

Sickness under Article 7:629 BW means being prevented from doing the agreed work because of illness, assessed on functional limitations rather than diagnosis. Disengagement is a choice: an employee who does exactly what the contract requires is not in breach for that reason alone.

The employer’s right to give instructions under Article 7:660 BW covers reasonable instructions within the job, not unlimited extra effort. Quiet quitting becomes legally relevant only when performance falls below what the contract requires, instructions are refused, or the working relationship breaks down.

What does an employer owe a sick employee?

Under Article 7:629(1) BW the employer pays at least 70% of the wage for up to 104 weeks, and at least the statutory minimum wage in the first 52 weeks. Under Article 7:629(9) BW the contract may provide that no wage is due for the first two days of sickness (waiting days).

Many collective labour agreements (cao) top this up, often to 100% in the first year and 70% in the second. Alongside the wage, the Gatekeeper Improvement Act (Wet verbetering poortwachter) sets the reintegration steps. Under the Regeling procesgang eerste en tweede ziektejaar the employer obtains the company doctor’s assessment within six weeks if long-term absence is expected, and the plan of action (plan van aanpak) follows within two weeks of that assessment, so by week eight. After the first-year evaluation, reintegration with another employer (second track) may be needed; the Employee Insurance Agency (UWV) checks the reintegration file later.

After 104 weeks the employee applies for a WIA benefit. If UWV finds the employer’s reintegration efforts insufficient, it extends the wage obligation by up to 52 weeks under Article 25(9) WIA (wage sanction). Most wage sanctions result from a thin file rather than from an employer that did nothing.

When does the dismissal ban apply?

Under Article 7:670(1) BW the employer cannot give notice while the employee is sick, unless the incapacity has lasted at least two years or began after UWV received the application for dismissal permission. Article 7:670a BW lists the exceptions, including written consent to the notice, the probationary period, summary dismissal and the discontinuation of the entire business.

The ban does not prevent termination by mutual consent in a settlement agreement (vaststellingsovereenkomst) or the expiry of a fixed-term contract. Under Article 7:670a(1) BW the ban also does not apply where the employee refuses without good reason to meet the reintegration duties of Article 7:660a BW, and the employer has warned the employee in writing or stopped the wage for that reason. The transition payment (transitievergoeding) under Article 7:673 BW is also due after long-term sickness. See our overview of សិទ្ធិឈឺរបស់និយោជិត និង កាតព្វកិច្ចរបស់និយោជិតក្នុងពេលមានជំងឺ.

តើ​អ្វី​ជា​ភាព​ខុស​គ្នា​រវាង​ការ​ផ្អាក​ប្រាក់​ឈ្នួល និង​ការ​បញ្ឈប់​ប្រាក់​ឈ្នួល?

Suspension (loonopschorting) defers payment; stopping (loonstop) ends the right to wages for that period. Using the wrong measure, or the wrong word in the letter, can cost the employer the entire measure.

Under Article 7:629(6) BW the employer may suspend wages while the employee does not follow reasonable written rules on providing information, for example not being at home at agreed times or missing the company doctor appointment. As soon as the employee complies, the withheld wage must be paid in full.

Under Article 7:629(3) BW the employee has no right to wages for the time he or she delays recovery, refuses suitable work without good reason, or refuses to cooperate with reasonable reintegration measures or with drawing up and evaluating the plan of action. That wage does not come back when the employee changes course.

Under Article 7:629(7) BW the employer must notify the employee without delay once it knows of the ground; an employer that pays on for weeks and then announces a retroactive stop cannot rely on it. Give a clear written warning first, stating the failure, the consequence and the deadline. An employee who disputes the measure must attach an expert opinion (deskundigenoordeel) from UWV to a wage claim under Article 7:629a BW; the employer can request the same opinion. See our note on legal actions in employee sick claims.

What may you ask about the employee’s health?

Very little. Health data is a special category of personal data under the GDPR, and the Dutch Data Protection Authority (Autoriteit Persoonsgegevens) has fined employers for recording diagnoses in absence systems.

When an employee reports sick, the employer may record the fact of the report, the expected duration, the contact details during absence, whether existing appointments can be kept, whether a third party may be liable (for recovery of wage costs), and whether a statutory safety-net provision applies. The employer may not ask about diagnosis, symptoms, treatment or cause, and may not record that information even if the employee volunteers it.

Functional limitations, such as a maximum number of hours at a screen, are information you may hold and must act on. If you disagree with the company doctor’s advice, ask UWV for an expert opinion; the employee can ask for a second opinion from another company doctor.

What about burnout and workplace conflicts?

Burnout is a valid ground for incapacity where the company doctor establishes functional limitations, and the employer cannot second-guess that. If the absence follows a dispute about workload, an appraisal or a reorganisation, the company doctor may conclude that there is a labour conflict rather than illness, which calls for mediation rather than sick leave. Act on that advice quickly.

How do you handle a suspected case correctly?

Build the performance file before any sickness report: documented conversations, expectations and support offered. Without it, any action after the report looks like retaliation, and a court will read it that way.

1. Apply your absence procedure. Check that the employee reported sick as prescribed; address any breach of the control rules in writing, as a suspension under Article 7:629(6) BW.
2. សូមទៅជួបគ្រូពេទ្យរបស់ក្រុមហ៊ុនភ្លាមៗ។ Delay counts against you in a UWV review.
3. Keep documented contact about wellbeing and return to work, not about outstanding tasks.
4. Draw up the plan of action by week eight and offer suitable work in writing where the company doctor considers it possible.
5. Escalate through the statutory instruments: a UWV expert opinion, a written warning, and only then a wage measure.

What does the employee owe in return?

Under Article 7:660a BW a sick employee must follow reasonable instructions and cooperate with measures aimed at a return, cooperate on the plan of action, and perform suitable work offered by the employer. Suitable work need not be the contractual work and may be at a lower level.

An employee who refuses suitable work without good reason loses the wage for that period under Article 7:629(3)(c) BW. Conversely, work the company doctor has not endorsed is not suitable, and a wage measure based on refusing it will not survive.

What if it is really a performance problem?

If the company doctor finds the employee fit for work, ordinary dismissal law applies. Under Article 7:669 BW dismissal requires a reasonable ground from a closed list and the absence of a suitable alternative position, tested in advance by UWV or the subdistrict court (kantonrechter).

For unsuitability (ground d of Article 7:669(3) BW) the employer must show it informed the employee of the shortcomings in good time and gave a real opportunity to improve, and that the unsuitability is not due to insufficient care for training or working conditions; it must also not be caused by sickness. An improvement plan written after the decision to part has been taken fails.

A damaged working relationship (ground g) or culpable conduct (ground e) sets a high threshold; simply doing the minimum is not culpable. Under ground i a combination of incomplete grounds can suffice, in which case the court may award up to half the transition payment extra under Article 7:671b(8) BW. See our overview of ច្បាប់ការងាររបស់ប្រទេសហូឡង់.

Many cases end in a settlement agreement. Under Article 7:670b BW the employee may dissolve it within fourteen days without giving reasons, or three weeks if the agreement does not mention this right. To protect the employee’s unemployment benefit, the initiative should come from the employer, the notice period should be respected and no culpability should be stated.

What happens after two years of sickness?

The wage obligation ends after 104 weeks and the dismissal ban lapses. Under Article 7:669(3)(b) BW the employer can then ask UWV for permission to dismiss if recovery within 26 weeks is not expected and the employee cannot be reassigned.

In 2019 the Supreme Court (Hoge Raad) held that an employer keeping a “dormant” contract alive to avoid the transition payment must in principle cooperate with an employee’s proposal to terminate it and pay the transition payment. Under Article 7:673e BW UWV compensates the employer for that payment. See our ទិដ្ឋភាពទូទៅនៃច្បាប់ការងារហូឡង់.

How do you prevent the problem?

Under Article 3(2) of the Working Conditions Act (Arbowet) the employer must pursue a policy to prevent or limit psychosocial workload, and under Article 5 it must record the risks in a risk inventory and evaluation (RI&E). An employer that has never assessed workload has both a compliance gap and a predictable absence problem.

Review team capacity regularly, make mental health support visible, and train managers to start the conversation when behaviour changes, not six months later with a formal warning. Under the good employer duty of Article 7:611 BW and equal treatment law on disability and chronic illness, consider reasonable adjustments, for example for ADHD or autism, before refusing them.

ក្នុងនាមជានិយោជក តើអ្នកគួរពិនិត្យមើលអ្វីខ្លះ?

• Did you refer the employee to the company doctor without delay, whatever you suspect?
• Do you record only functional limitations and never the diagnosis?
• Are your control rules written, reasonable and known to the employee in advance?
• Does your letter use the right measure: suspension under Article 7:629(6) BW or a wage stop under Article 7:629(3) BW, notified without delay?
• Is the plan of action in place by week eight and is the reintegration file complete?
• Is your performance file dated before the sickness report?

ក្នុងនាមជាបុគ្គលិកម្នាក់ តើអ្នកគួរពិនិត្យមើលអ្វីខ្លះ?

• តើអ្នកបានរាយការណ៍ថាឈឺនៅតាមផ្លូវ និងនៅពេលដែលច្បាប់របស់និយោជករបស់អ្នកតម្រូវដែរឬទេ?
• Do you attend company doctor appointments and cooperate on the plan of action?
• Has suitable work been offered with the company doctor’s endorsement before you refuse it?
• Did you receive a written warning before any suspension or stop of your wage?
• Do you need a UWV expert opinion to support a wage claim (Article 7:629a BW)?

What can we do for you with sickness and disengagement?

របស់​យើង មេធាវីការងារ advise employers and employees on long-term absence, wage measures and dismissal:

• We review your absence policy and control rules for compliance with Article 7:629 BW and the GDPR.
• We draft warning letters and wage-measure letters with the correct legal basis.
• យើងរៀបចំសំណើសុំយោបល់ពីអ្នកជំនាញ UWV។
• We review the reintegration file before the WIA application to limit the risk of a wage sanction.
• We set up an improvement plan or negotiate a settlement agreement.

សេចក្តីសង្ខេប

• Only the company doctor assesses incapacity; follow the sickness procedure whatever you suspect.
• A sick employee is entitled to at least 70% of the wage for up to 104 weeks and is protected against dismissal by notice (Articles 7:629 and 7:670 BW).
• Suspension of wages is deferred payment; a wage stop ends the right to wages for that period.
• The employer may not process diagnoses; it may only act on functional limitations.
• Disengagement is handled through performance management and the dismissal grounds of Article 7:669 BW.

សំណួរ​ដែលគេ​ច្រើន​សួរ