It is a scenario that frustrates every business owner and HR manager. An employee calls in sick with suspicious frequency—perhaps consistently on Mondays, immediately following a conflict with a manager, or right before a crucial deadline. On social media, they might appear perfectly healthy, or their story simply does not add up.
This creates a difficult tension. On one hand, you have a strict duty of care towards your staff. On the other, you have a legitimate need to control absenteeism and protect the company’s interests. The core question arises: what can an employer legally do when they doubt the legitimacy of an employee’s illness?
Dutch employment law is known for its strong employee protection, but it does not give staff a free pass to fake illness. Employers have specific legal instruments at their disposal—from control regulations to wage sanctions and, in extreme cases, dismissal. However, the path to these solutions is filled with procedural landmines. One wrong move can lead to a rejected dismissal or a substantial compensation claim. This guide explores the legal framework, rights, and necessary steps for handling doubtful sickness absence under Dutch law.
The Legal Framework: Rights and Obligations
To act effectively, one must first understand the legal playing field defined by the Dutch Civil Code (Burgerlijk Wetboek or BW) and the Gatekeeper Improvement Act (Wet verbetering poortwachter).
Obligations of the Employee
An employee who is sick enjoys protection, but this comes with strict duties. Under Article 7:660a BW, a sick employee is legally obliged to cooperate with their recovery and reintegration. This is not optional. It means the employee must:
- Comply with reasonable instructions given by the employer or the Occupational Health and Safety Service (Arbodienst).
- Cooperate with measures aimed at enabling them to perform their own work or other suitable work.
- Accept suitable work if offered and deemed appropriate by the company doctor (bedrijfsarts).
Failure to meet these obligations allows the employer to impose sanctions. The law is clear: the right to continued payment of wages is inextricably linked to the duty to cooperate.
Obligations of the Employer
The employer’s role is equally regulated. Article 7:658a BW mandates that the employer must actively promote the employee’s reintegration. You cannot simply sit back and wait for recovery. You must facilitate suitable work and draft an action plan (Plan van Aanpak).
Furthermore, under Article 25 of the Work and Income (Capacity for Work) Act (Wet werk en inkomen naar arbeidsvermogen), accurate reporting and dossier building are mandatory, especially during long-term absence. The employer must balance the need to control the absenteeism with their duty of care. Pressuring a genuinely sick employee can be seen as neglecting this duty, while failing to monitor a potentially dishonest employee can be seen as mismanagement.
Control Options and Sanctions
When suspicion arises, you are not powerless. The law provides specific mechanisms to verify illness and enforce compliance.
Permissible Control Regulations
According to Article 3 of the Sickness Benefits Control Regulations 2020, an employer is entitled to establish reasonable control regulations. These must be written and communicated clearly to staff. Common permissible rules include:
- Reporting rules: Requiring the employee to call a specific number before a certain time (e.g., 09:00 AM).
- Accessibility: The employee must be reachable by phone or email during specific hours.
- Availability for checks: The employee must be available for a visit by a lay inspector (spoedcontroleur) or must appear at the company doctor’s consultation hour.
If an employee fails to follow these administrative rules—for example, by refusing to answer the phone or not showing up at the company doctor—you may apply sanctions.
Wage Sanctions: Suspension vs. Stoppage
It is vital to distinguish between two types of wage sanctions, as confusing them can be legally fatal.
- Wage Suspension (Loonopschorting): This is a pressure tool. You suspend payment of wages because the employee is preventing you from checking whether they are actually sick (e.g., missing a doctor’s appointment). If they later cooperate and are found to be genuinely sick, you must pay the suspended wages retroactively.
- Wage Stoppage (Loonstopzetting): This is a definitive penalty. You stop paying wages because the employee is refusing to perform suitable work or refusing to cooperate with reasonable reintegration instructions (Article 7:629 BW). These wages are lost permanently.
Recent jurisprudence, such as ECLI:NL:HR:2024:579 and ECLI:NL:GHSHE:2025:1737, confirms that sanctions are justified if an employee hinders the control process. However, the sanction must be proportionate and announced in writing immediately.
Dismissal on Summary Grounds
Summary dismissal (ontslag op staande voet) is the ultimate sanction. The bar for this is incredibly high. It is reserved for urgent causes, such as fraud or persistent refusal to obey reasonable orders (Article 7:677 BW).
Case law (e.g., ECLI:NL:GHSGR:2006:AX8698 and ECLI:NL:GHARL:2014:2600) shows that summary dismissal for “faking illness” requires undeniable proof. Mere suspicion is insufficient. Furthermore, the prohibition on termination during illness (opzegverbod) only applies to genuine illness. If an employee is proven to be feigning sickness, this protection may lapse, but establishing this proof is the employer’s burden.
Burden of Proof and the Company Doctor
A common misconception among employers is that they can determine whether an employee is sick. Under Dutch privacy and employment law, you cannot.
Who Must Prove What?
The general rule regarding the burden of proof is strict: the employer must prove that the employee is not sick. This is logically difficult (proving a negative). However, the burden shifts if the employee violates control regulations to the extent that verification becomes impossible.
As highlighted in ECLI:NL:RBOVE:2023:777, if an employee makes control impossible, the risk lies with them.
The Crucial Role of the Company Doctor (Bedrijfsarts)
The company doctor is the only party legally authorised to determine medical incapacity for work. An employer’s “gut feeling” has no legal standing.
- Objective Assessment: The courts consistently rule that a medical assessment is required (see ECLI:NL:GHSHE:2025:1793).
- Risks of Bypassing: Proceeding to dismissal without a company doctor’s judgment is perilous. As seen in ECLI:NL:CRVB:2024:9393, firing an employee for unauthorized absence when they claim illness—without a medical opinion—will likely lead to the dismissal being overturned.
If the company doctor states there is no medical hindrance to work, and the employee still refuses to return, the situation shifts from “illness” to “refusal to work,” which is grounds for disciplinary action.
Proportionality and Due Care
Even if an employee is in the wrong, a judge will always apply a proportionality test. Was the sanction (especially dismissal) a proportional response to the misconduct?
The Proportionality Test
In cases like ECLI:NL:HR:2021:596 and ECLI:NL:CRVB:2025:624, judges weigh all circumstances:
- Nature and seriousness: Was it a one-off lie or systematic fraud?
- Length of service: A long-standing employee with a spotless record has more credit than a new hire.
- Personal circumstances: Does the employee have underlying personal issues?
- Warning history: Have there been clear, written warnings previously?
The Importance of an Improvement Trajectory
Dismissal should be the ultimum remedium (last resort). Courts expect an escalation ladder.
- Verbal warning.
- Written warning.
- Wage suspension.
- Dismissal.
Skipping steps is often fatal in court (see ECLI:NL:RBZWB:2025:8726). The principle of hoor en wederhoor (hearing both sides) must be applied; the employee must be given a chance to explain their side before a severe sanction is imposed.
Mitigating Circumstances
Employers often lose cases due to procedural sloppiness. If the sick leave protocol was unclear, or if communication was ambiguous, a judge may rule in favour of the employee (ECLI:NL:RBZWB:2025:8728).
Step-by-Step Plan: Building a Watertight Dossier
To minimize legal risk, employers should follow a structured approach when dealing with doubtful absenteeism.
Step 1: Ensure a Clear Absenteeism Protocol
You cannot enforce rules that do not exist. Ensure you have a written protocol detailing how and when to report sick, accessibility requirements, and the consequences of non-compliance. Ensure the employee has received this.
Step 2: Register and Document Everything
From the moment the “suspicious” pattern emerges, document it.
- Keep a log of dates, times, and reasons for absence.
- Save all emails and letters.
- Write summaries of all conversations and share them with the employee for confirmation.
Step 3: Engage the Company Doctor Immediately
Do not debate the illness with the employee. Send them to the company doctor. Ask specifically: “Is there a medical incapacity for work regarding their specific duties?” If you disagree with the doctor, or the employee does, request an Expert Opinion (Deskundigenoordeel) from the UWV.
Step 4: Warn and Escalate
If the employee breaks the rules (e.g., misses an appointment), issue an immediate written warning. If it happens again, move to wage suspension. Always cite the specific article of the protocol violated.
Step 5: Assess Proportionality
Before moving to dismissal, ask: Have we tried lighter measures? Is this proportionate? Consult with legal counsel before taking the final step.
Step 6: Gather Evidence
If you suspect fraud (e.g., working elsewhere while sick), you need concrete evidence. However, be wary of privacy laws regarding surveillance. Rely primarily on the administrative non-compliance (refusal to visit the doctor) rather than medical speculation.
Case Studies in Practice
Case 1: Frequent Short-Term Absence Without Medical Cause
An employee called in sick almost every Monday. The company doctor found no medical cause for incapacity. The employer issued official warnings for the pattern. When the employee refused to return to work despite the “fit” diagnosis, the employer stopped wages. Eventually, the employer requested dissolution of the contract based on a damaged working relationship and culpable conduct. The court granted this because the file showed a clear refusal to work without medical grounds.
Case 2: Refusal to Cooperate with Control
An employee repeatedly failed to show up for the company doctor. The employer suspended wages and sent multiple registered letters. After the third missed appointment without valid reason, the employee was summarily dismissed. The court upheld the dismissal (ECLI:NL:GHSHE:2025:1737) because the persistent refusal to allow medical control made the employment relationship untenable.
Case 3: The Unclear Protocol
An employer fired an employee for not being home during a check. However, the company handbook did not specify “stay-at-home” hours. The employee argued they were at the pharmacy. The court annulled the dismissal (ECLI:NL:RBZWB:2025:8728) due to lack of clarity and disproportionality.
Common Mistakes to Avoid
- Playing Doctor: Never tell an employee “I don’t believe you are sick.” Instead, say “We need the company doctor to assess your capacity.”
- Immediate Dismissal: Firing someone on the spot without a prior warning or wage sanction rarely holds up in court for absenteeism issues.
- Vague Files: “He is always sick” is not evidence. “He was absent on these 12 specific dates” is evidence.
- Ignoring Personal Circumstances: Failing to ask if there are other issues (e.g., divorce, debt) can make an employer look unreasonable.
- Inconsistency: You cannot punish Employee A for something you let Employee B get away with.
Conclusion
Dealing with an employee who appears to be “faking it” is a test of patience and procedural discipline. While your gut instinct may be to terminate the employment immediately, Dutch law requires a more measured approach.
The key lies in shifting the focus from the medical truth (which you cannot judge) to the process (which you control). By strictly enforcing a clear protocol, utilizing the company doctor effectively, and building a granular paper trail, you can build a defensible case for sanctions or dismissal. However, given the complexity of the dismissal prohibition during illness, seeking legal advice at the earliest sign of structural non-compliance is highly recommended.
Frequently Asked Questions
1. Can I, as an employer, judge if an employee is truly sick?
No. Under Dutch law, you are not authorised to judge an employee’s medical condition. Only a company doctor (bedrijfsarts) or the Occupational Health and Safety Service (Arbodienst) can objectively assess incapacity for work. Making medical judgments yourself carries significant legal risk and liability. Always engage a company doctor in cases of doubt (ECLI:NL:GHSHE:2025:1793).
2. When can I suspend or stop a sick employee’s wages?
You may suspend wages if an employee violates control regulations (e.g., missing a doctor’s appointment), preventing you from verifying the illness. This is temporary; if they are later proven sick, you must pay the arrears. You may stop wages definitively if the company doctor confirms the employee is fit for suitable work but they refuse to do it, or if they refuse to cooperate with reintegration (Article 7:629 BW). Both require prior written notification.
3. What must be included in an absenteeism protocol?
A robust protocol must include:
- Reporting rules: Before what time and via which method (phone/email) must illness be reported?
- Accessibility: When must the employee be reachable?
- Control rules: The obligation to appear at the company doctor’s office.
- Reintegration duties: What is expected regarding recovery efforts?
- Sanctions: The consequences of non-compliance.
It should be written, communicated, and ideally part of the employee handbook.
4. Can I fire an employee who is structurally sick on Mondays?
Direct dismissal based solely on a suspicious pattern is generally not possible. You must follow a trajectory: engage the company doctor, document the pattern, issue written warnings, and apply proportional sanctions. If the doctor finds no medical cause and the behavior continues, you may file for dissolution based on culpable conduct (Article 7:669 sub 3 e BW). A solid dossier is essential (ECLI:NL:RBLIM:2025:8341).
5. What if the company doctor says the employee is fit, but they claim otherwise?
If the company doctor rules there is no incapacity, the employee is generally not entitled to sick pay and must work. If they refuse, you can stop wages. If the employee disagrees, they must request an Expert Opinion (Deskundigenoordeel) from the UWV. Until the UWV rules otherwise, the company doctor’s opinion stands. Continued refusal to work can lead to sanctions up to dismissal.
6. Must I always warn before summary dismissal?
While legally immediate dismissal exists for urgent causes, in practice, the lack of a warning trajectory is often fatal. Judges test for proportionality. Unless the misconduct is extreme (e.g., fraud), a judge expects prior warnings and lighter measures for protocol violations (ECLI:NL:RBZWB:2025:8726).
7. Can an employee claim they didn’t know the rules?
Yes. If the protocol was not clearly communicated or was ambiguous (e.g., is WhatsApp allowed?), this is a valid defense. Judges assess if the employee could reasonably understand expectations. Lack of clarity often leads to the annulment of sanctions (ECLI:NL:RBZWB:2025:8728).
8. What are the financial risks of an unjustified wage stop?
If you stop wages without valid legal grounds, you must repay the wages plus a statutory increase (wettelijke verhoging) of up to 50%, plus statutory interest. The employee may also claim damages for legal costs or emotional distress. It also severely weakens your position in any future dismissal case (ECLI:NL:HR:2024:579).
9. Can I discipline an employee for social media activity while sick?
Social media activity itself is not proof of fitness to work. Someone with burnout or a back injury can still post online. However, if the activity contradicts the medical limitations (e.g., posting photos of weightlifting while off with a back injury), use this as grounds to request a re-evaluation by the company doctor. Do not stop wages solely based on Instagram posts; let the doctor assess the medical contradiction.
