Since March this year, people in the Netherlands are advised to work from home as much as possible in connection with the fight against the coronavirus. This advice has no end date yet.
Recently, the Subdistrict Court of Nijmegen (in Dutch) ruled that an employer was not obliged to make his employees work from home. This would mean that an employee cannot derive any rights from the advice. It is up to the employer to take appropriate measures.
On 27 July 2020, the Subdistrict Court of Alkmaar (in Dutch) adjudicated a dispute in which the employee had not appeared at work since March in order to protect his wife, who is chronically ill. A conflict about this between the employee and his employer eventually led to a summary dismissal.
The Facts
The employee concerned has been employed since 2003 as ‘chief of workshop’. He has been struggling with a difficult home situation for years. His wife suffers from a chronic illness and is therefore unable to take care of their 6-year-old son. Their son attends an after-school care facility every day.
At the beginning of March, the employee called in absent because both his family members and he were (alternately) suffering from corona-like complaints. At the advice of the GP and the hospital, the family went into self-quarantine. However, the employee also failed to show at work after the complaints had passed. The employee was faced with a childcare problem, because both school and after-school care had meanwhile been closed. Besides, the employee had been advised to stay at home as much as possible in connection with his wife's fragile health.
The employer demanded that the employee come back to work again and help think about solutions to this situation. However, the employee failed to appear or to suggest a suitable proposal. Following an official warning, a salary freeze, and a final warning, the employee was summarily dismissed. The employee asked the Court to nullify the dismissal.
Summary Dismissal
The Subdistrict Court held that the summary dismissal was unjustified. It could be expected of the employee to communicate better about his personal situation and to discuss possible solutions with the employer. However, given his personal circumstances, he cannot be blamed for being unable and unwilling, at least temporarily, to be at work. The Subdistrict Court also considered that by being so tough on the employee, the employer had not acted properly. Nevertheless, the employment agreement was rescinded on the ground of a damaged working relationship. The fact that the parties stated that they cannot go on together anymore played an important role in this decision.
Entitlement to Wages?
Since the summary dismissal did not stand up in court, the employment agreement will continue until the rescission date, and the employee is, in principle entitled to wages. The Subdistrict Court must therefore adjudicate whether the wage freeze was rightly imposed. According to the Subdistrict Court, the cause of not working (pursuant to Section 7:628 DCC) is not attributable to the employee. It could not reasonably be required of the employee to appear at work. According to the RIVM guidelines, people have to work from home as much as possible. The employer in this case has not examined whether the employee could do different suitable tasks, nor were such tasks offered to him. The wage freeze was unjustified.
Conclusion
The advice to work from home may cause problems when an employee does not want to come to work because of the fragile health of him/herself or his or her family members. If a job cannot be done from home, it can be expected that the employer – in line with the ruling discussed above – examines whether there are other suitable tasks the employee can do from home. We are of the opinion that there can only be an obligation to examine. If no other suitable work is available, we believe that the employee will not be entitled to wages anymore if he fails to show at work due to circumstances in his/her private life (and also fails to take leave).
Of course, employers are expected to take appropriate measures to create a safe workplace. A vulnerable situation of the employee may also play a role in this.
Please contact Eylard van Fenema or Marieke Opdam if you have any questions.
