Wage Sanction Imposed for Working from Home Lacking Structural Nature

In cases of long-term illness of an employee, the employer has to make drastic reintegration efforts. The first goal of reintegration is the employee’s resumption of work within the own company (track 1). If resuming work at the own employer is not possible or not certain, a second track has to be started, which pursues reintegration at another employer. After two years of illness, the UWV will assess whether the employer has made sufficient efforts to have the employee reintegrate. If not, the UWV may impose a wage sanction on the employer, consisting of a one-year extension of the obligation to continue paying wages during illness.

A recent ruling of the Central Appeals Tribunal (in Dutch: ‘CRvB’) focused on the question whether the UWV had rightly imposed a wage sanction for the absence of a satisfactory (reintegration) result. 

The employee concerned worked 24 hours per week in the position of office sales assistant. At some point, she dropped out due to illness. Prior to reporting ill, she used to work from home four hours per week. During her reintegration process she began working from home almost exclusively. At the end of the two-year period of illness, the UWV imposed a wage sanction on the employer, because the UWV held that no satisfactory result had been reached. 

In this ruling, the CRvB considered that according to the Gatekeeper Policy Rules Review Framework and the Gatekeeper Manual, a satisfactory result exists if a resumption of work has been realized that matches (to a greater or lesser degree) the remaining functional abilities of the employee. An important condition for this is that the resumption of work must be structural in nature. It has to be plausible that the employee can keep doing the work.

In the case concerned, there was no satisfactory result because the resumption of work lacked a structural nature. The employer greatly valued the physical presence of staff in the office, and would not permit staff to work from home permanently (not even in this case). 

As there was no satisfactory result, the UWV carried out an elaborate substantive review of the reintegration efforts. The CRvB held that this investigation had rightly caused the UWV to conclude that the employer’s efforts had been insufficient. The employer had neither examined whether there were any other options within the organisation, nor started a second track. Therefore, the UWV had rightly imposed the wage sanction.

 If a satisfactory result is reached in reintegration, the UWV will not impose a wage sanction. Reintegration is satisfactory – as this ruling shows – when an employee is performing suitable work that comes closest to their remaining abilities. Another example of a satisfactory result is when an employee is performing suitable work with a wage value of more than 65% of their original wages. 

Both situations do require that the work performed is a structural nature; the employee has to keep doing the adjusted work immediately following the compulsory period of continued payment of wages during illness. The basic principle here is that the employment is for an indefinite period of time. An irrevocable commitment is required on this point.

Importantly, when a sick employee has resumed working and is doing suitable work, additional reintegration efforts may still be required, such as an extensive investigation into the options within the organisation, or a second track. The employer can only leave out these efforts if the suitable work can be offered to the employee on a structural basis.