Illness by intent: impossible to prove

Article 7:629(3)(a) of the Dutch Civil Code provides that an employer is not required to pay wages in the event of illness intentionally caused by an employee. It is almost impossible to imagine a case involving illness by intent. Some 15 years ago, a wage claim was filed in a very upsetting case. In a seriously confused state, the employee had sawed off his own arm in the workplace and had subsequently attempted to commit suicide. During the subsequent period of recovery, the employer had to continue to pay his wages because no intent was involved, due to the employee’s severely depressed state (ECLI:NL:RBZLY:2006:AY9274).

Last summer, the Rotterdam District Court had to rule in preliminary relief proceedings on a wage claim filed by an employee of a childcare organisation against her employer (ECLI:NL:RBROT:2022:6691). The employee had undergone breast reduction surgery abroad. She called in sick the day after the operation. The childcare organisation subsequently refused to pay her wages during that period of illness. In the employer’s opinion, the consequences of undergoing cosmetic surgery should be for the employee’s account, since she had opted, without any medical necessity, to go abroad to have the surgery.

However, the employee was able to substantiate that she had had the surgery for medical reasons. She had been struggling with back and shoulder complaints for quite some time. It was also apparent from advice given by the company doctor that medical complaints were involved. The employee’s GP had referred the employee to the plastic surgery department, but her health insurer refused to pay for the procedure. However, the health insurer’s refusal to pay for the surgery was not the decisive factor for the court. In the court’s opinion, that decision might also depend on the specific insurance package and the financial interests involved. The court found that the employee’s aim in undergoing the surgery was to reduce her symptoms, not to become incapacitated for work and collect sick pay from her employer. In those circumstances, the surgery could not be considered a purely cosmetic procedure that should be at her own risk and expense. She therefore had not intentionally causing her illness. The employee was therefore entitled to continued payment of her wages.

But in what circumstances may illness then be deemed to be intentional? We found one partial award in published case law (Subdistrict Court of Sittard-Geleen, 20 July 2009, JAR 2009/211). The case concerned an aircraft instructor who had violated the safety rules and was called to account – and “rightly”, in the court’s opinion. The instructor could not accept that reprimand and hit the wall so hard with his hand that he broke his metacarpal, rendering him fully incapacitated for work. The court ruled that the instructor had put himself in a situation in which he was unable to perform productive work. The employer had the right to withhold his salary for four weeks. It took longer for the metacarpal to recover, however, and the employer did have to pay his salary after that four-week period.

In sum, the bar for withholding wages on the grounds of illness by intent is so high for an employer that the legislature might be well advised to abolish Article 7:629(3)(a) of the Civil Code entirely. That would remove false expectations in the sense that the childcare organisation and its employee would have been spared a harmful legal battle.

Please contact Michiel van Haelst (+31-6-553 944 87)  for more information or advice on this subject.

This article was published in the Newsletter Vestius of November 2022