Employee sick but not really: what employers may do under Dutch law

When an employer suspects sick leave abuse, Dutch law offers real instruments but draws one hard line: the employer may never decide whether an employee is medically unfit for work. That assessment belongs to the company doctor (bedrijfsarts). What an employer may do is set written control rules, require the employee to cooperate with them, and suspend or stop wages when the employee does not. Article 7:629 of the Dutch Civil Code (Burgerlijk Wetboek, BW) is the provision on which all of this turns.

That separation between the medical question and the procedural one decides most cases. Employers who argue about the illness itself lose; employers who enforce a clear absence procedure and record every step usually prevail. Dutch employment law protects sick employees firmly, but it does not protect an employee who frustrates the verification of their own absence. This article sets out what each side must do, which sanctions exist, and how far you can go before a court turns the sanction against you.

Who decides whether an employee is ill

The company doctor is the only party legally authorised to determine incapacity for work. An employer’s own impression, a report from a colleague or a photograph on social media has no standing in that assessment. The employer is not even permitted to ask what is wrong: health data are special category data under the GDPR, and the Dutch Data Protection Authority (Autoriteit Persoonsgegevens) takes the position that an employer may record only what it needs for wage payment and reintegration. In practice that means the date of the report, the expected duration, a contact address, whether the absence relates to an accident for which a third party may be liable, and which tasks the employee believes they can still perform.

If the employer or the employee disagrees with the company doctor, either can ask UWV for an expert opinion (deskundigenoordeel). It is not binding, but courts give it considerable weight, and the law makes it close to indispensable: under Article 7:629a BW a claim for continued wages during illness is inadmissible unless it is accompanied by a UWV expert statement, save where obtaining one cannot reasonably be required. An employer who takes a wage sanction without ever involving the company doctor therefore enters proceedings without the one document the court expects to see.

What the sick employee must do

An employee who reports sick keeps the right to continued payment of wages for a maximum of 104 weeks under Article 7:629 BW, but that right is conditional. Article 7:660a BW obliges the employee to cooperate with reasonable instructions from the employer and the occupational health service (arbodienst), to cooperate with measures aimed at a return to their own or other suitable work, to accept suitable work when the company doctor considers it appropriate, and to help draw up, evaluate and adjust the action plan (plan van aanpak).

Article 7:629(3) BW attaches the sanction. The employee has no claim to wages for the period in which they refuse suitable work without proper grounds, obstruct or delay their own recovery, refuse to cooperate with reasonable reintegration instructions, fail to help draw up or evaluate the action plan, or without good reason omit to apply for a benefit under the Work and Income (Capacity for Work) Act (Wet werk en inkomen naar arbeidsvermogen, WIA) in time. These are refusals of reintegration, not administrative slips; that distinction matters for the sanction you may impose.

What the employer must do first

The duty runs both ways. Article 7:658a BW requires the employer to take active steps to return the employee to work, in their own role where possible and otherwise in suitable work, within the company or, if that fails, with another employer. The Gatekeeper Improvement Act (Wet verbetering poortwachter) sets the timetable: the occupational health service draws up a problem analysis in the sixth week of absence, and the employer and employee together draw up an action plan within eight weeks of the first day of illness, evaluating it at fixed intervals thereafter. Article 25 WIA obliges the employer to build the reintegration file that accompanies a later WIA application.

These obligations are not paperwork for its own sake. If UWV concludes at the end of the second year that the employer made insufficient reintegration efforts, it can impose a wage sanction (loonsanctie) extending the obligation to pay wages by up to 52 weeks, during which the prohibition on termination during illness continues to run. An employer who suspects abuse and therefore does nothing runs the larger financial risk of the two. Our article on reintegration after illness and when wage sanctions apply sets out that sequence in more detail.

Control rules: what you may require

Article 7:629(6) BW is the legal basis for absence control. It allows the employer to suspend payment of wages where the employee fails to comply with written control rules that are reasonable and have been made known in advance. Two conditions do the work here. The rules must exist in writing before the absence, and the employee must demonstrably have received them, normally through the staff handbook or the collective agreement. Rules that were never communicated cannot support a sanction, and an ambiguous rule is read against the employer who drafted it.

Within those limits you may require a good deal. You may require the employee to report sick personally to a named manager before a stated time, to be reachable at agreed hours, to give an address where they can be reached, to attend the company doctor’s surgery when called, and to admit a visiting absence controller. What you may not do is require the employee to disclose the nature of the complaint, to hand over medical records, or to accept a home visit at any hour without a stated window. Covert observation of a suspected malingerer is a last resort with a high threshold: it must be necessary, proportionate and impossible to replace with a lighter means, and evidence gathered in breach of those conditions tends to damage the employer’s case rather than help it.

Wage suspension and wage stoppage are not the same thing

Confusing the two is the most common and the most expensive mistake in this area. Suspension of wages (loonopschorting) rests on Article 7:629(6) BW and is a pressure instrument. You withhold payment because the employee is preventing you from checking whether they are unfit for work, typically by missing an appointment with the company doctor or by being unreachable. If the employee then cooperates and turns out to have been genuinely ill, the withheld wages must be paid in full and with retroactive effect. Nothing is lost; only the moment of payment shifts.

Stoppage of wages (loonstopzetting) rests on Article 7:629(3) BW and is definitive. You stop payment because one of the statutory grounds applies, most often a refusal of suitable work or a refusal to cooperate with reintegration after the company doctor has found the employee fit for that work. Wages over that period are lost for good. The choice between the two follows from the reason: an administrative failure that blocks verification leads to suspension, a substantive refusal of reintegration leads to stoppage. Choose the wrong instrument and the sanction fails, even where the employee was plainly in the wrong.

Article 7:629(7) BW adds a trap of its own. The employer forfeits the right to rely on either ground if it does not notify the employee immediately after it becomes aware of the ground, stating which ground it relies on. Immediately means immediately: a letter sent a fortnight after the missed appointment is usually too late. The letter should name the rule that was broken, state whether wages are being suspended or stopped, and say what the employee must do to end the sanction.

The cost of getting this wrong is real. In a summary proceeding before the Limburg District Court (ECLI:NL:RBLIM:2025:8341), an employer that had first suspended and then stopped wages because the employee was said not to be taking part in reintegration activities was ordered to pay the wages in full. Where a wage sanction is set aside, the employer owes the arrears together with the statutory increase for late payment under Article 7:625 BW, which can reach fifty per cent, and statutory interest. A comparable outcome followed in the wage sanction case before the Overijssel District Court.

Dismissal during illness and the limits of summary dismissal

Article 7:670(1) BW prohibits termination by notice during the first 104 weeks of illness. That prohibition protects genuine illness only, so in theory it falls away where the employee is not ill at all. In practice the employer carries the burden of proving that, which is a burden almost impossible to discharge without a medical assessment. The workable route is different: where the company doctor has found the employee fit for suitable work and the employee still stays away, the case is no longer about illness but about refusal to work, and the prohibition on termination does not stand in the way.

Two routes then remain. The subdistrict court can dissolve the contract for culpable conduct under Article 7:669(3)(e) BW or for a seriously and lastingly disturbed working relationship under Article 7:669(3)(g) BW; under Article 7:671b(6) BW the court may do so despite the prohibition on termination where the request is unconnected with the circumstances the prohibition covers. Summary dismissal (ontslag op staande voet) under Articles 7:677 and 7:678 BW is the heaviest instrument and the most easily lost. It demands an urgent cause, immediate notice and immediate communication of the reason, and the reason given at the time is the only one the employer may later rely on. Courts set the bar high; the ruling that poor performance is not an urgent cause shows how quickly a summary dismissal collapses when it rests on accumulated irritation rather than on a single decisive fact.

Where a summary dismissal for feigned illness is upheld, it is normally not the pretended illness that carries the decision but a documented, repeated and unexcused refusal to submit to control after clear written warnings. That is the case an employer can actually build.

Proportionality and the file a court expects

Whatever sanction you choose, the court weighs it against the conduct. The nature and seriousness of the breach, the length of service and the employee’s record, personal circumstances that may explain the behaviour, and the warnings already given all enter that assessment. Dismissal is treated as an ultimum remedium, which in practice means the court looks for an escalation: an oral warning, a written warning naming the rule breached and the consequence of repetition, a wage suspension, and only then termination. Skipping steps is the single most frequent reason employers lose these cases.

Two procedural points carry disproportionate weight. The employee must be heard before a serious sanction is imposed, and must have a genuine chance to explain the absence or the missed appointment. And the employer must be consistent: a rule enforced against one employee and tolerated in another is not a rule a court will uphold. Consistency is also the reason to record the file contemporaneously rather than reconstruct it once a dispute has started.

What to do when a pattern emerges

Begin with the protocol rather than with the employee. Check that a written absence procedure exists, that it states how and by when illness must be reported, when the employee must be reachable, that attendance at the company doctor is compulsory, and what happens if those rules are broken. Check that this employee has actually received it. If any of that is missing, repair it for the whole workforce first; you cannot enforce a rule that was never set.

From the moment the pattern becomes visible, record it factually. Dates, times, who reported to whom, which appointments were made and which were missed, and what was said in each conversation, confirmed to the employee in writing afterwards so that the file is not one-sided. Then refer the employee to the company doctor and put the question in the terms the doctor can answer: are there medical limitations that prevent this employee from performing these specific duties, and if so, which work remains suitable. Do not debate the diagnosis with the employee, and do not tell them you disbelieve them.

If the employee then breaks a control rule, send a written warning the same week that names the rule and states what happens next. On a repetition, suspend wages and say so immediately and in writing, identifying the ground. If the company doctor finds the employee fit and the employee still refuses suitable work, move from suspension to stoppage and record that change of ground expressly. Only when that sequence has been run, and the file shows it, does dismissal become a realistic option. If you suspect actual fraud, such as working elsewhere while drawing sick pay, build the case on the documented non-compliance rather than on medical speculation, and take advice before any form of observation.

Mistakes that cost employers the case

Employers rarely lose because the employee was in the right. They lose because the file does not support the sanction. Telling an employee that you do not believe they are ill puts the medical judgement in your own mouth, where it does not belong; the correct sentence is that the company doctor will assess capacity. Dismissing immediately, without a prior warning or a lighter sanction, almost never survives the proportionality test in absence cases. A vague file that says the employee is always ill proves nothing, whereas a list of twelve dated absences with the corresponding appointments and letters proves a great deal.

Two further errors recur. Failing to ask whether something else is going on, such as a bereavement, debt problems or a conflict at work, makes an employer look unreasonable at precisely the moment it needs to look measured. And notifying a wage sanction late, or without saying which ground it rests on, hands the employee the arrears together with the statutory increase without the court ever reaching the question of who was right about the absence.

Frequently asked questions

Absence you doubt is above all a procedural problem, and the employer who treats it as one keeps the advantage. Law & More advises employers in Eindhoven and across the Netherlands on absence protocols, wage suspension and stoppage, reintegration files and dismissal during illness, and represents them before the subdistrict court where a dispute cannot be settled. If a pattern of absence is starting to look like a case, we are glad to look at the file with you.