Başarısız yeniden entegrasyon: Hollanda yasalarına göre riski kim üstleniyor?

When reintegration of a sick employee fails in the Netherlands, the employer usually bears the financial risk: if UWV finds the reintegration efforts insufficient, it imposes a wage sanction (loonsanctie) of up to 52 extra weeks of sick pay. The risk shifts to the employee only if the employee refuses to cooperate without good reason; the employer can then stop the wage and, ultimately, seek dismissal.

This article explains the duties of both sides under the Gatekeeper Improvement Act (Bekçi İyileştirme Yasası), how UWV assesses the file, and what each side should check.

What must the employer do during the two years of illness?

The employer must lead the reintegration from the first week of sickness and document every step. Under Article 7:629 of the Dutch Civil Code (BW), it pays at least 70% of the wage for up to 104 weeks, and in the first year at least the statutory minimum wage.

The fixed timetable is:

• Hafta 1: report the illness to the company doctor (şirket doktoru) or occupational health service.
• Hafta 6: the company doctor draws up a problem analysis.
• Hafta 8: employer and employee agree a eylem Planı (eylem planı) and appoint a case manager.
• At least every 6 weeks: evaluate progress and adjust the plan.
• Hafta 42: report the sickness to UWV.
• Hafta 52: birinci yıl değerlendirmesi.
• Week 93 at the latest: the employee applies to UWV for WIA disability benefit, with the reintegration report attached.

The employer must first look for work in the employee’s own job, then other suitable work within the company (first track). If that has no prospect, it must start reintegration with another employer (second track, spor 2), usually through a specialised agency.

How does UWV assess the reintegration efforts?

When the employee applies for WIA benefit, UWV checks the reintegration report (yeniden bütünleştirici atıkları) for one question: did employer and employee do enough to achieve a return to work? UWV looks for timely, consistent and meaningful action over the full two years.

Typical reasons for a wage sanction are a late or missing problem analysis or plan of action, ignoring the company doctor’s advice, starting the second track too late, an incomplete file, or failing to request an expert opinion when there was disagreement.

What does a wage sanction mean in practice?

A wage sanction extends the employer’s obligation to pay wages by up to 52 weeks, so sick pay runs for up to three years. During that period the prohibition on dismissal during sickness also continues.

The sanction can end earlier. If the employer repairs the shortcomings, it can submit a repair report (herstelmelding) to UWV, and UWV then decides whether the sanction can be shortened. Act quickly: every month of delay costs a month of wages.

Can the employee also claim fair compensation?

Yes, but only if the employer acted seriously culpably (ernstig verwijtbaar). That bar is much higher than the shortcomings that lead to a wage sanction.

Courts have accepted serious culpability where an employer persistently ignored the company doctor’s advice, deliberately refused reasonable adjustments, let a conflict escalate that blocked a return, or pressured a sick employee to resign. Fair compensation (billijke vergoeding) is then awarded by the subdistrict court (alt bölge mahkemesi) on top of the wage sanction. More on termination payments in our article on işten çıkarma tazminatları.

What are the employee’s duties, and what if the employee does not cooperate?

Under Article 7:660a BW, the employee must cooperate with reintegration: follow reasonable instructions, attend appointments, accept suitable work and help draw up and evaluate the plan of action. Medical information goes to the company doctor, not to the employer.

If the employee does not cooperate, the employer has two different measures under Article 7:629 BW, and they are often confused:

• Suspension of wages (Article 7:629(6) BW): for breaking reasonable written control rules, such as being unreachable or missing a check-up. Once the employee complies, the withheld wage must be paid in full.
• Stopping wages (Article 7:629(3) BW): for refusing suitable work, obstructing recovery or refusing to cooperate with the plan of action or second-track reintegration. The wage over that period is lost.

Under Article 7:629(7) BW, the employer must inform the employee without delay once it learns of the ground; otherwise it cannot rely on it. Put the warning in writing, name the ground and say what the employee must do. Where employer and employee disagree, either can ask UWV for an expert opinion (uzman görüşü) Madde 7:629a BW uyarınca.

Can the employer dismiss an employee who refuses to cooperate?

Yes, as a last resort. The prohibition on dismissal during sickness in Article 7:670(1) BW does not apply if the employee refuses to cooperate without good reason and the employer has first given a written warning or stopped the wages (Article 7:670a(1) BW).

The employer must then ask the subdistrict court to dissolve the contract on the ground of culpable conduct. If the employee was seriously culpable, no transition payment (geçiş ücreti) is owed.

İki yıllık hastalıktan sonra ne olur?

After 104 weeks, or after the wage sanction ends, the prohibition on dismissal lapses. The employer can then apply to UWV for a dismissal permit on the ground of long-term incapacity for work.

The employer must pay the transition payment, but under Article 7:673e BW it can claim compensation from UWV, capped at the wages paid during the illness. Apply to UWV promptly after paying the transition payment, because the request is subject to a deadline.

İşveren olarak neleri kontrol etmelisiniz?

• Whether the problem analysis (week 6) and plan of action (week 8) were made on time.
• Whether you followed every recommendation of the company doctor, or documented why not.
• Whether you started the second track as soon as return within the company had no prospect.
• Whether evaluations took place at least every six weeks and are in the file.
• Whether you warned the employee in writing before suspending or stopping wages.
• Whether you asked UWV for an expert opinion where you and the employee disagreed.

Bir çalışan olarak neleri kontrol etmelisiniz?

• Whether you attend every appointment and follow reasonable written instructions.
• Whether the plan of action reflects your limitations as described by the company doctor.
• Whether you share medical details only with the company doctor.
• Whether a wage stop or suspension was announced in writing and on the right ground.
• Whether you ask UWV for an expert opinion if you think offered work is not suitable.

What can we do for you when reintegration fails?

Ürettiğimiz istihdam avukatları advise employers and employees throughout the two years; see also our pages on Hollanda'da sağlık yardımları hem de Hollanda'da çalışanların hastalık hakları.

• We review the reintegration file before the WIA application, so gaps can be repaired in time.
• We draft a repair report to UWV to shorten a wage sanction, or an objection (itiraz) against the sanction within six weeks.
• We draft written warnings and wage-stop letters that meet Article 7:629(7) BW.
• We request an expert opinion from UWV on suitable work or reintegration efforts.
• We conduct proceedings before the subdistrict court about wages, dissolution or fair compensation.
• We apply for UWV compensation of the transition payment after dismissal for long-term illness.

ÖZET

• The employer leads reintegration and bears the main risk if it fails.
• UWV can impose a wage sanction of up to 52 weeks; a repair report can shorten it.
• Fair compensation on top requires seriously culpable conduct by the employer.
• An employee who refuses to cooperate risks suspension or loss of wages and, ultimately, dismissal.
• After two years, the employer can dismiss via UWV and claim compensation for the transition payment.

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