Labour law  in this day and age.

There is a ban on dismissal for sick employees. In principle, therefore, the employment contract cannot be terminated. The employment contract of a sick employee who has been made redundant cannot be terminated for economic reasons (reorganisation). However, a subdistrict court may terminate the employment contract if the reason for termination is separate from the occupational disability. For example, if the employee is unfit for work and this is not the result of an occupational disability, or if the working relationship is disturbed.

If an employee agrees to a termination by mutual consent (settlement agreement) while the ban on dismissal during illness applies, the employee risks being denied unemployment benefit. The employee is not entitled to unemployment benefit because he or she is not (fully) available to the labour market. The employee therefore has no income.

As an employer, you may not simply dismiss an employee. He will first have to request permission from the UWV or request dissolution from the subdistrict court. To obtain permission or dissolution, the employer must demonstrate that there are ‘reasonable grounds’ for dismissal and that the employee cannot be reinstated elsewhere in the organisation. Examples of reasonable grounds for dismissal include

• business economic reasons (e.g. in a reorganisation);
• dysfunction;
• culpable conduct; or
• disrupted working relationship.

If there is a notice prohibition, for example during illness or pregnancy, dismissal is not possible in many cases, even if there are reasonable grounds.

On the other hand, dismissal during the probationary period is possible in many cases, as is dismissal due to reaching the state pension age.

If there is serious culpable conduct by the employee, the employer can proceed to give instant dismissal. In that case, the employer does not need to have the dismissal tested beforehand.

Finally, employer and employee can also consult with each other about a termination of the employment contract. The conditions for terminating the employment contract can then be laid down in a settlement agreement.

An employer may monitor its employees, but must take into account the interests of the employee. For example, consider privacy; even if it is a business mailbox, the privacy of the employee concerned may be infringed.

Under certain circumstances, the employer may still access the business e-mail (unsolicited), namely:

1. when the employee is aware or may be aware that he may be monitored. For example, consider a regulation stating under which circumstances the employer can monitor the mailbox; and
2. the employer has a legitimate purpose to monitor the mailbox, for example in case of suspicion of culpable conduct by the employee; and
3. if the measure is proportionate. The measure must be proportionate to the reason why the mailbox is checked.

The employer should never refuse a sick note. Even if it is clear that it is not an illness but a conflict. In this case, it is advisable for the employer to ask for an (emergency) consultation with the company doctor. In most cases - if there are really no medical complaints - the company doctor will advise talks between the employer and the employee. The company doctor may directly recommend mediation (talks conducted by an independent third party).

No, a sick note can never be refused. Of course, an employer may have doubts about the cause of the illness (e.g. in the case of a labour dispute) or wonder whether the employee is actually completely unfit for work, but in this case the employer should go ahead with the sick note and request an (emergency) consultation with the company doctor. The company doctor is the only person authorised to judge whether the employee is (un)fit for work. The advice of the company doctor is not binding. The parties can agree to deviate from the advice of the company doctor.

If the employee does not agree with the company doctor's advice, he or she can request a second opinion from the occupational health service. Another occupational physician from another occupational health service will then see the employee again and give advice. This advice is not sent to the employer. The employer pays for the second opinion. The employer and employee can also ask the UWV for an expert opinion if they are in doubt about the advice given by the occupational physician. The costs of the expert opinion are borne by the employer or the employee.

If there is an employment contract, there is a right to wages during illness. During the first two years (104 weeks), there is an obligation to continue to pay wages. If the employment contract lasts less than two years, the obligation to continue to pay wages exists for the remaining period of employment. At the end of the employment contract, the employer reports the employee sick from work.

The employer must pay wages to the employee at the time of incapacity for work. Legally, this is 70% for the first year, but at least the minimum wage, and 70% (without the supplement to the minimum wage) of the agreed wage for the second year. For high wages, the employer can maximise the wage during illness up to the maximum daily wage. By collective agreement or in the individual employment contract, arrangements can be made in favour of the employee. Commonly, the first year is paid 100% and the second year 70%.

If the employee works on the basis of an on-call contract, in principle, there is also simply an obligation to continue paying wages. In this case, the employees' pay will probably vary monthly. If the employee has a min/max contract, then the agreed percentage over the minimum number of hours should be paid. If the employee has a zero-hours contract, then a reference period of three months is used to see what the scope of the employment contract is (the legal presumption). If this is not a representative period, a longer period can be used. Incidentally, even if the employee works more than the agreed number of hours by default, this legal presumption can be used.

The obligation to set up a works council (‘OR’) applies as soon as at least 50 people are employed for an extended period. Therefore, if 50 or more persons are employed due to a temporary peak period, this does not necessarily mean that a works council must be established immediately. Conversely, this does not mean that temporarily failing to meet the 50 limit means that the Works Council is immediately dissolved.

When determining whether 50 people are employed, the following count:

• All persons with an employment contract with the employer. This can be:
• an employment contract for an indefinite period of time
• a fixed-term employment contract
• a full-time employment contract or a part-time employment contract
• on-call workers (zero-hours, min-max)
• All persons with an official appointment
• Temporary workers employed for at least 24 months
• Own loaned employees

Directors do not count. Not even if they have an employment contract with the company.

If the employer does not establish a works council itself, but is obliged to do so under the Works Councils Act, any interested party can petition the subdistrict court.

If 10 to 50 people are employed, a works council is not compulsory. However, an employee representation body (‘PVT’) must then be set up as soon as the majority of the employees request it. If there is no works council or PVT, then the staff must be regularly bound by the possibility of participation and information by a staff meeting (‘PV’).

In principle, employers are not obliged to offer a pension scheme. There is an important exception to this. That is when the employer's activities fall under a compulsory pension fund. Whether this is the case depends on the scope determined by the relevant pension fund. If you as an employer comply with this, you are automatically obliged to follow the pension scheme of the industry pension fund. As an employee, you are then automatically entitled to a pension. A compulsory occupational pension scheme may apply to certain professional groups.

If no compulsory pension scheme applies, agreeing/not agreeing on a pension scheme is up to the freedom of employer and employee. This does not mean that the employer can determine ‘at will’ whether an employee does/does not receive a pension scheme. Equal work should in principle be rewarded equally. This also applies with regard to pensions. Finally, after a transfer of undertaking (in the event of a merger or takeover), there may be an obligation to offer a pension scheme.

There are different types of pension, namely: retirement pension, disability pension or survivor's pension. The pension scheme itself can consist of a:

• defined benefit (DB) scheme. These are final pay schemes and average pay schemes;
• capital agreement; or
• defined contribution (DC) scheme. This is a defined contribution scheme.

There are also mixed forms of these, such as a hybrid pension scheme, the target scheme or collective defined contribution (CDC) scheme.