Appropriate employment, what is it? Labor Law 2018/25

The Leeuwarden subdistrict court ruled on October 31, 2017, in brief, that an employer's obligation to offer suitable employment stops where such employment is not available. This ruling gives cause to review the relevant case law of the Supreme Court and examine whether the lower case law is in line with that case law. In addition, we examine how this case law relates to the assessment of reintegration efforts in the context of a WIA application and a dismissal application due to long-term disability by UWV and subdistrict court.

1. The ruling of Oct. 31, 2017

The employee was employed in 1975 as a heating installation technician. In January 2015, he dropped out due to osteoarthritis in his shoulder. The labor expert ruled as part of the WIA application that the normative work was installation mechanic. When the employee joined the company, this exclusively involved assembling central heating systems, but during the course of his employment, assembling solar panels had also become part of his job. The employee could no longer perform the installation of solar panels. He was unfit for the stipulated work. The employer could not offer the lighter CV installation work for the original work scope of 32 hours per week. The employee offered his services in full and claimed full salary continuation. However, he was only paid for the lower number of hours he did the lighter CV installation work. The employer took the position that there was no obligation to continue paying wages after two years of illness, as the employee was no longer fit for the stipulated work. The subdistrict court found that the installation of solar panels had become part of the employee's duties and that he was no longer capable of doing so. Referring to the Supreme Court ruling UWV/Stal3 , the subdistrict court noted that an obligation to pay wages would still exist if the employee kept himself available to perform suitable work and this suitable work was wrongfully not offered. The subdistrict court ruled that the employee was satisfied with the bare assertion that the employer had sufficient suitable work, but had not substantiated that assertion. The obligation to offer suitable work stops where such work is not available. The employer could not be expected to offer the positions...

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