Burnout and work pressure: what must employers and employees do?

Under Dutch law, burnout and work pressure are handled through the ordinary rules on sickness: once the company doctor (bedrijfsarts) finds that the complaints make you unfit for your work, the employer must continue to pay at least 70 per cent of the wage for up to 104 weeks under Article 7:629 of the Dutch Civil Code (Burgerlijk Wetboek, BW). The main exception is the employee who is tired or unhappy but still able to do the agreed work: without incapacity for work, there is no sick pay.

Neither the employer nor the employee decides whether there is incapacity for work. That judgement belongs to the company doctor, and it triggers almost every right and obligation described below, including the reintegration duties of the Gatekeeper Improvement Act (Wet verbetering poortwachter).

The rules are largely mandatory, and a mistake early in the sickness period can cost an employer up to 52 extra weeks of wages. Below we set out what Dutch employment law requires of both sides, from the first sick leave report to the end of the two-year period, and where an employer’s liability for a work-related burnout begins and ends.

When does burnout count as illness under Dutch law?

A burnout counts as illness as soon as the company doctor finds that it prevents you from doing your agreed work. Dutch law has no separate definition of burnout; what matters is the functional consequence, not the diagnosis.

The Civil Code speaks of an employee who is prevented from performing the agreed work because of sickness. That wording covers physical and psychological complaints alike. A burnout therefore produces exactly the same legal position as a broken leg: the same wage obligation, the same reintegration duties and the same protection against dismissal.

The question the company doctor answers is whether the complaints limit you in performing the agreed work and, if so, which activities remain possible and for how many hours. The diagnosis is not passed on to the employer at all. That is why an employer who says that a burnout is “not a real illness” is on very weak ground: the employer has no say in the medical assessment.

Work pressure, stress and burnout: what is the difference?

Work pressure describes the demands of the job itself: volume, deadlines, responsibility and emotional load. Work pressure is not unlawful and is not in itself a legal problem. It becomes one when the demands structurally exceed what the employee can carry, and the employer knows or should know this.

The practical dividing line is incapacity for work (arbeidsongeschiktheid). An employee who is tired and unhappy but able to do the agreed work is not ill in the legal sense and has no claim to sick pay. An employee whom the company doctor considers limited in doing that work is ill, whatever the label on the complaints.

What must the employer do to prevent work pressure and burnout?

The employer must assess the risks of work pressure in writing, take measures to limit them and act on signals that an employee is overloaded. Prevention is a statutory obligation, not a matter of good intentions.

The Working Conditions Act (Arbeidsomstandighedenwet, usually shortened to Arbowet) requires every employer in the Netherlands to carry out a risk inventory and evaluation (risico-inventarisatie en -evaluatie, RI&E), to record the outcome in writing, and to attach a plan of action setting out which measures will be taken, by whom and by when. Psychosocial workload must be part of that assessment. An employer whose RI&E is missing, outdated or silent on work pressure has a compliance problem before any individual employee falls ill.

Which measures does the law actually expect?

Where the risk assessment shows a risk of psychosocial workload, the Working Conditions Decree (Arbeidsomstandighedenbesluit) obliges the employer to take measures to prevent or limit it, and to inform employees about the risks and the measures taken.

In practice, the Netherlands Labour Authority looks for a recognisable and documented set of steps: a policy on undesirable behaviour, a complaints procedure that leads somewhere, an appointed confidential adviser, a prevention officer, workload monitoring that is more than an annual survey, and visible follow-up when signals appear.

Working time is part of the same picture. The Working Hours Act (Arbeidstijdenwet) sets maximum working hours and minimum rest periods. Structural overtime that breaches those limits is evidence of a badly organised workplace, as well as a violation in its own right. Employers who follow good employment practices monitor the hours actually worked, not just the contracted hours.

The employer must also have a written basic contract with a certified occupational health service or company doctor. That contract must guarantee the company doctor free access to the workplace, a consultation hour that employees can use before they report sick, and the employee’s right to ask for a second opinion from a different company doctor. The second opinion is a right of the employee, and the employer bears the cost.

Why is acting on signals the decisive test?

The question that decides most burnout disputes is not whether the workload was heavy, but whether the employer responded when it became clear that it was too heavy.

Signals that a court will treat as clear include repeated short absences, an employee who says in a performance review that the work is unmanageable, structural evening and weekend work visible in the systems, an unfilled vacancy whose tasks were quietly redistributed, and complaints about a manager that were reported and then left alone. An employer who receives such a signal and does nothing measurable is exposed. An employer who reduces the workload, redistributes tasks, brings in support, records the agreement and checks back on it has generally done what the duty of care requires, even if the employee still develops a burnout.

What must the employee do from the first day of sickness?

Report sick on the first day, in the way your employer has prescribed, and then cooperate with the company doctor and with reintegration. You do not have to tell your employer what is wrong.

You report sick on the first day of incapacity, before the start of the working day or at the time laid down in the employment contract, the staff handbook or the collective labour agreement. Reporting late, or to the wrong person, is the most common and most avoidable mistake, because it allows the employer to suspend payment until the rules are followed.

What may the employer ask, and what not?

You do not have to say what is wrong with you. Health data are special category personal data under the GDPR, and the Dutch Data Protection Authority (Autoriteit Persoonsgegevens) takes the position that an employer may not ask about the nature of the complaints, the diagnosis or the treatment, and may not record such information even if the employee volunteers it.

What the employer may ask is limited and practical: the expected duration of the absence, the address where you can be reached, which appointments and tasks need to be taken over, whether the absence is connected to a workplace accident or an accident for which a third party is liable, and whether one of the safety net schemes of the Sickness Benefits Act might apply. Everything medical goes to the company doctor, who only reports back to the employer in terms of limitations and possibilities. An employer who pushes for medical details, or who asks colleagues about them, processes health data unlawfully. The limits are set out in our guide to sick leave and privacy.

How must you cooperate with recovery and reintegration?

You must attend appointments with the company doctor, be reachable during agreed hours, follow reasonable instructions aimed at recovery, avoid conduct that hinders or delays recovery, and accept suitable work when it is offered.

Suitable work (passende arbeid) means work that reasonably matches your capacities, taking account of your training, previous work and health limitations. It need not be your original job and, later in the two-year period, it need not be with the same employer.

The sanctions for failing in these duties are real and immediate. If you do not comply with the employer’s rules for checking absence, the employer may suspend the wage until you do, and the wage is then paid retrospectively. If you refuse suitable work, obstruct your recovery or refuse to cooperate with the plan of action without a good reason, the employer may stop the wage altogether for the period of the refusal, and that money is not paid later. Both measures require the employer to warn you promptly and in writing before applying them; a wage stop imposed without warning does not hold. The interaction between these duties and the sanctions is explained in our guide to reintegration after illness and wage sanctions.

If you and your employer disagree about whether work is really suitable, or about whether the reintegration efforts are adequate, either of you can ask the UWV (the Employee Insurance Agency) for an expert opinion (deskundigenoordeel). It is not binding, but a court attaches considerable weight to it, and it is often the cheapest way out of a deadlock. Where the dispute is about the working relationship rather than the medical position, mediation in a labour dispute is often the faster route.

How much pay do you receive during sick leave, and for how long?

Under Article 7:629 BW you receive at least 70 per cent of your wage for up to 104 weeks, and in the first 52 weeks at least the statutory minimum wage. Many employment contracts and collective labour agreements pay more.

Most employment contracts and almost every collective labour agreement improve on this floor, often by paying 100 per cent in the first year and 70 per cent in the second. Some make the second-year supplement conditional on cooperation with reintegration, which is lawful. Check the applicable collective agreement first in any dispute about sick pay.

Two further points are often overlooked. Under Article 7:629(9) BW, the employer may agree with the employee that no wage is paid for the first two days of each period of sickness (waiting days), but only if this has been expressly agreed; without such an agreement, wages run from day one. And holiday entitlement continues to accrue in full during sickness, as does pension accrual under most schemes, so an employee who returns after a long absence usually has a substantial holiday balance.

What happens if a fixed-term contract ends during illness?

A fixed-term contract ends on its agreed end date, even if you are ill. From that date, the UWV takes over with a sickness benefit under the Sickness Benefits Act (Ziektewet), and also takes over reintegration.

Under Article 38(2) of the Sickness Benefits Act, the employer must report the sickness to the UWV on the last working day before the employment ends, and must provide the reintegration information the UWV asks for. The size of that file depends on how long the illness has lasted at the end of the contract.

What is the reintegration timetable under the Gatekeeper Improvement Act?

The Gatekeeper Improvement Act prescribes a fixed sequence of steps for employer and employee, each with its own deadline counted from the first day of sickness. Missing them is one of the most expensive mistakes an employer can make.

At the end of the two years, the UWV checks the reintegration file. If the effort was inadequate, it can extend the employer’s wage obligation by up to 52 weeks. The main steps are:

• Week 1: the employer reports the sickness to the occupational health service or company doctor, at the latest within one week.
• Week 6: the company doctor draws up the problem analysis, describing the limitations, the remaining capacity and the prospects of return.
• Week 8: employer and employee jointly draw up the plan of action (plan van aanpak) on the basis of that analysis, and a case manager is appointed.
• Every six weeks: the parties evaluate progress and record the outcome in writing.
• Week 42: the employer reports the long-term sickness to the UWV, at the latest on the first day after 42 weeks of incapacity (Article 38(1) of the Sickness Benefits Act).
• Between weeks 46 and 52: the first-year evaluation, in which the parties record what has been achieved and set the objective for the second year.
• Around week 88: the UWV sends the employee a letter about the benefit under the Work and Income (Capacity for Work) Act (WIA); the employee has six weeks to apply.
• Week 104: the wage obligation ends, unless the UWV imposes a wage sanction.

What are the first track, the second track and the redeployment obligation?

Reintegration runs in two tracks: return to work with your own employer (first track) or, if that is not possible, placement with another employer (second track). Both parties have obligations in each track.

The first track is return to work with the employer: in the original job, in the original job with adjustments, or in another suitable position within the organisation. The employer must adapt tasks, hours, working times and the workstation as far as can reasonably be expected, and must consider every vacancy in the organisation, not only those in the employee’s own department.

If return within the organisation proves impossible, or clearly will not succeed, the second track opens: structured placement with another employer, usually through a specialised agency. The second track must usually start no later than around the first-year evaluation, and starting it too late is one of the most frequent reasons for a wage sanction. Running the first and second tracks in parallel is allowed and is often the safest course when recovery is uncertain.

These reintegration obligations apply to both sides. An employee who declines to take part in the second track, or who refuses a suitable placement, risks a wage stop and, ultimately, dismissal. An employer who fails to document its efforts will find that the UWV assesses the file on what is written down, not on what was intended.

What is a wage sanction?

A wage sanction (loonsanctie) means that the UWV extends the employer’s obligation to pay wages, by up to 52 weeks, because the reintegration effort was insufficient. During that extension, the prohibition on dismissal during illness also continues.

At the end of the two years, the UWV assesses the reintegration report. If it concludes that the employer made insufficient effort without a good reason, it extends the wage payment period under Article 7:629(11) BW in conjunction with the WIA. The employer then keeps both the cost and the employee. The sanction can be shortened if the employer repairs the omission, which is why acting on a sanction immediately is worthwhile. A sanction imposed because the company doctor made a mistake still falls on the employer, who may then have a claim against the occupational health service.

When is an employer liable for a burnout?

An employer is liable under Article 7:658 BW if the employee suffered damage in the performance of the work and the employer did not comply with its duty of care. For psychological injury, the employee must first show that the working conditions were objectively harmful, and that is where most claims fail.

Liability for a work-related burnout is assessed under Article 7:658 BW, often together with the good employment practice standard of Article 7:611 BW. The structure of Article 7:658 BW favours the employee once the first hurdle is cleared. The employee must show damage suffered in the performance of the work. The employer is then liable unless it proves that it complied with its duty of care, or that the damage was largely caused by the employee’s intent or deliberate recklessness.

The employee must show that the working conditions were objectively harmful, not merely experienced as harmful, and must make the causal link between those conditions and the health damage plausible. Courts distinguish a demanding job, an unpleasant reorganisation or a personality clash, which generally do not qualify, from structural overloading, sustained bullying, intimidation or aggression, which can. These employer obligations are strict, but they are not a guarantee against every burnout.

What does an employee have to prove?

Three elements have to line up before a claim succeeds:

• Objectively harmful working conditions, shown with concrete and verifiable material: hours worked, workload figures, unfilled positions, dated messages and e-mails, incident reports, statements of colleagues, and occupational health advice that went unanswered.
• Causation: a demonstrable link between those conditions and the psychological damage, which is why medical records and the timing of the complaints matter so much.
• Breach of the duty of care: the employer knew or should have known of the risk and failed to take the measures that could reasonably be expected of it.

The practical lesson is that these cases are won and lost on the record. An employee who raised the workload verbally and left it there has very little. An employee who confirmed the conversation by e-mail, kept the reply and can show that nothing changed has a case. Conversely, an employer with a documented policy on undesirable behaviour, a working complaints procedure, an appointed confidential adviser, a current risk assessment covering work pressure, and a written record of the measures taken after a signal, is in a strong position even where the burnout was genuine and severe.

What can be claimed, and within what period?

Damages under Article 7:658 BW can cover loss of income not made good by wages or benefits, medical and treatment costs, the cost of domestic help and, where the injury is established, compensation for non-material damage. Sick pay already received is taken into account.

A claim for damages generally becomes time-barred five years after the day on which the injured party became aware of both the damage and the party liable for it (Article 3:310 BW). For personal injury, specific rules apply to the outer time limit. An employee who suspects work-related injury should therefore not wait until the end of the two-year sickness period before taking advice. Law & More does not handle personal injury claims: for the calculation and recovery of the damages, we refer you to a specialised personal injury lawyer, while we can advise on the employment law side, such as sick pay, reintegration and dismissal.

Liability and reintegration are separate questions. An employer can fully comply with the Gatekeeper Improvement Act and still be liable for having caused the burnout. And an employer who is not liable at all can still receive a wage sanction for a weak reintegration file. Confusing the two leads employers to defend the wrong point.

Can you be dismissed after long-term illness?

Not during the first 104 weeks of illness: the employer may not give notice because of sickness in that period. After two years, dismissal is possible with permission from the UWV, or by mutual consent.

The prohibition on notice during illness in Article 7:670 BW protects the employee for the full two years. Periods of sickness are added together unless they are interrupted by more than four weeks; after a longer interruption, the period starts again.

The prohibition is not absolute. It does not apply during a probationary period, in the case of summary dismissal for an urgent reason, where the employee agrees in writing, or where the business closes down entirely. It also does not apply if the employee refuses without a good reason to cooperate with reintegration or with the company doctor, but only after the employer has first warned the employee in writing and stopped the wage. Skipping that step is fatal to the dismissal.

What is the route after two years?

After 104 weeks, dismissal because of long-term incapacity for work becomes possible. The employer needs a dismissal permit from the UWV. The UWV grants it only if the employee is still unable to do the agreed work, recovery within 26 weeks is not expected, and the employee cannot be redeployed in a suitable position within that period, with or without training. These conditions are cumulative. The UWV also checks whether the reintegration effort was adequate; a weak file leads to a wage sanction rather than a permit.

Alternatively, the parties can end the contract by mutual consent in a settlement agreement, which avoids the procedure and is what happens in many cases. The same rules apply to the other routes to terminate employment in the Netherlands.

The employee is entitled to the statutory transition payment (transitievergoeding), calculated over the entire period of employment, including the two years of illness. The employer can ask the UWV to compensate that payment under the compensation scheme for long-term incapacity for work, subject to statutory limits. That scheme removed the main financial reason employers once had for leaving contracts dormant.

May an employer keep a dormant employment contract alive?

Not simply to avoid the transition payment. Since the Xella judgment of the Dutch Supreme Court, an employer must in principle agree to an employee’s proposal to end a dormant contract with payment of the transition payment.

A dormant contract (slapend dienstverband) is one that is left in place after two years of illness, with no work and no wages. In its judgment of 8 November 2019 in the Xella case (ECLI:NL:HR:2019:1734), the Supreme Court held that good employment practice requires an employer, in principle, to agree to an employee’s proposal to end such a contract by mutual consent, with payment of an amount equal to the statutory transition payment. The employer may only refuse if it has a legitimate interest in keeping the contract alive, for example a realistic prospect that the employee will return to work. An employee whose contract has been left dormant can therefore take the initiative, and should.

What should you check as an employee?

In the first weeks of sickness, the procedure decides most of your rights under Article 7:629 BW. Check these points:

• You reported sick on the first day, in the way your contract, staff handbook or collective agreement prescribes.
• You attend every appointment with the company doctor and are reachable during the agreed hours.
• You have copies of the problem analysis (week 6), the plan of action (week 8) and every evaluation.
• You raised the workload in writing, by e-mail, and kept the replies.
• If you disagree with the company doctor, you ask for a second opinion; if you disagree about suitable work or your wage, you ask the UWV for an expert opinion.
• You do not sign a settlement agreement while ill without advice, as it can cost you your sick pay and your benefit.

What should you check as an employer?

A missing document can cost you up to 52 extra weeks of wages under Article 7:629(11) BW. Check these points:

• Your risk inventory and evaluation (RI&E) is current and covers work pressure, with a plan of action.
• You have a written basic contract with an occupational health service or company doctor.
• Every signal about workload is answered in writing, with a measure and a follow-up date.
• The Gatekeeper deadlines are in the diary from day one, including the week 42 report to the UWV.
• The second track starts in good time, at the latest around the first-year evaluation.
• You never ask about the diagnosis, and never stop the wage without a prior written warning. If you doubt whether an absence is genuine, see our guide on an employee is reported sick but appears able to work.

What can we do for you with burnout and work pressure?

Our employment lawyers advise employers and employees from the first sick report to proceedings before the subdistrict court (kantonrechter).

• We review the reintegration file against the Gatekeeper deadlines before the WIA application is filed.
• We draft the written warning before a wage suspension or wage stop, or contest one on your behalf.
• We prepare the request for a UWV expert opinion on suitable work or reintegration efforts.
• We assess whether the facts support liability under Article 7:658 BW; the personal injury claim itself we refer to a specialist.
• We advise on dismissal after long-term illness, the UWV dismissal permit and the transition payment.

Summary

• Burnout counts as illness once the company doctor finds you unfit for your agreed work; the employer does not decide this and may not ask about the diagnosis.
• You receive at least 70 per cent of your wage for up to 104 weeks, and at least the minimum wage in the first 52 weeks (Article 7:629 BW); collective agreements often pay more.
• The Gatekeeper Improvement Act prescribes fixed steps (problem analysis in week 6, plan of action in week 8, UWV report in week 42); an inadequate file can lead to a wage sanction of up to 52 weeks.
• Employer liability for burnout (Article 7:658 BW) requires objectively harmful working conditions, causation and a breach of the duty of care; we refer the personal injury claim itself to a specialist.
• Dismissal because of illness is not possible during the first two years; afterwards it requires a UWV permit or mutual consent, with a transition payment.

Frequently asked questions