Privacy of ill employees

Employees have a right to privacy in their private lives. This also applies to sick employees. However, they must also comply with their reintegration obligations and provide accurate information about their illness. What options does the employer have to check whether they are actually doing this?

If there are serious doubts about whether an employee is ill, employers may engage an investigation agency, provided that the infringement of the employee’s right to privacy is limited. If the findings of the investigation agency show that an employee is not telling the truth about their limitations and ability to work during illness, they risk dismissal. This is also evident from a recently published ruling by the Rotterdam District Court.

Ill or not ill?

Shortly after the end of his probationary period, a lorry driver reported sick because he had twisted his knee. The employer then came by to bring him a bouquet of flowers, but the employee did not open the door. The employee was also not at home during a second visit on the same day. More than a week later, he wrote to his employer in WhatsApp messages that he was unable to leave the house and had to walk with crutches.

The employer was suspicious, went back to the employee’s home and saw that the employee was walking down the stairs without crutches and driving the car himself – things he supposedly couldn’t do. The car journey took him to the company doctor, where he again reported that he couldn’t walk properly and couldn’t drive.

Based on these findings, the employer engaged an investigation agency. The agency found that the employee was outside several times a day, walking up and down stairs or running at a brisk pace, and walking dogs in his slippers, with a large dog pulling hard on the leash. He also went to shops, walked across an uneven football pitch and drove a car. All this without crutches and without any visible limitations. The employer then dismissed the employee with immediate effect on the grounds of incorrect and incomplete statements about the severity of his limitations and his ability to work during illness.

The employee argued in court that the summary dismissal was unjustified. He was genuinely ill and limited in his abilities. What he had done and what the investigation agency had seen was more than he could handle. The court dismissed this argument. Even if this was true, he was still capable of more than he had told his employer and the company doctor. Moreover, after twisting his knee on the last day of his probationary period, he had still worked for another day without his colleagues noticing that he had physical limitations.

Violation of privacy?

The employee tried another way to get the summary dismissal reversed. He argued that bringing in the investigation agency was an unacceptable violation of his right to privacy. He didn’t convince the magistrate: the employer had good reason to doubt the limitations claimed by the employee, which could justify the investigation. Although an employer should be cautious about approaching a sick employee themselves, the initial visits were certainly permissible: the employer did not intend to observe the employee, but only wanted to cheer him up by bringing him a bouquet of flowers.

The employer should perhaps not have visited the employee’s home again after that, but was entitled to use the findings in its decision to engage an investigation agency. In this case, the employer’s interest in uncovering the truth outweighs the employee’s right to privacy. Finally, the seriousness of the infringement was limited: the employer observed the employee on public roads for a short period of time, namely four days.

Everything showed that the employee did not have the physical limitations he claimed to have. The employee therefore made incorrect and incomplete statements about his incapacity for work. In doing so, he also acted in breach of his reintegration obligations during illness. According to the subdistrict court, this justifies summary dismissal. That dismissal therefore remains in force. The employer is also not required to pay a transition allowance.

Appeal: employers cannot decide for themselves whether an employee is unfit for work

The Court of Appeal in The Hague reached a different conclusion, but this was unrelated to any potential breach of the employee’s privacy.

The employer should first have consulted the company doctor again for a further assessment, rather than proceeding immediately to summary dismissal. The fact that people make short car journeys, do the shopping or walk their dogs does not automatically mean that they are also capable of working as a lorry driver. Furthermore, the employee had explained that his symptoms worsened as the day progressed and the pain medication wore off. Now that the summary dismissal has been found to be unjustified, the employee is entitled to compensation for the failure to observe the notice period, a transition payment and fair compensation.

The ruling by the Court of Appeal in The Hague demonstrates once again that it is ultimately not the employer, but the company doctor or occupational health and safety service that determines whether an employee is unfit for work and which tasks they are and are not able to perform.

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