You cannot work due to work circumstances, but medically you are not ill. What are your rights?
Situational incapacity for work (situatieve arbeidsongeschiktheid) is a concept specific to Dutch employment law. It refers to a situation where someone is not medically ill, but due to a disrupted work situation cannot reasonably function in their current employment.
This typically involves a disrupted employment relationship. You are not medically incapacitated, but the work circumstances mean you temporarily cannot work for this employer.
You may have a conflict with a colleague, with a supervisor, or with your employer.
Such disputes create a difficult situation for both parties. The employee with situational incapacity for work runs the risk of feeling not taken seriously, while an employer, due to the absence of a demonstrable limitation, feels they are being misled.
In the case of situational incapacity for work, it's important that your emotions don't take over. Communication remains essential.
LegalBacking can guide you through the mediation process to help reach a resolution.
When there is situational incapacity for work, the question arises whether you remain entitled to continued payment of your wages. After all, there is no medical illness. Dutch case law has developed assessment factors that courts consider when determining whether wages must be continued.
It must be plausible that there are unworkable working conditions.
The cause of these unworkable circumstances is at least partially attributable to the employer, or the employer has failed to adequately address the situation.
It must be plausible that you cannot reasonably be expected to resume work under the current circumstances.
You must make maximum effort to remove the obstacles that stand in the way of returning to work.
In other words: you must demonstrate that resuming work under the current circumstances would be unreasonable and could lead to further harm.
Once the occupational physician has assessed that situational incapacity applies, it's important that both parties continue to communicate. The employer may be frustrated about the situation, and as an employee you often feel powerless and stressed.
Despite these difficult emotions, the Gatekeeper Improvement Act (Wet Verbetering Poortwachter) - Dutch legislation governing sick leave and reintegration - requires both employer and employee to work together toward returning you to work.
The occupational physician often recommends workplace mediation in cases of situational incapacity for work.
The occupational physician assesses that you cannot perform work under the current circumstances with this employer, but that this incapacity is tied to the specific work situation rather than a medical condition.
This means that in principle, you might be able to work in a different role or for a different employer - though this depends on individual circumstances.
If the occupational physician proposes a 'cooling-off period' in the context of situational incapacity for work and you follow the advice regarding workplace mediation, you will work with a mediator with a legal and/or psychological background.
A workplace mediator is neutral and does not take sides. The mediator facilitates dialogue between you and your employer, helping you find a solution that works for both parties.
Agreements are recorded in writing. When parties decide to part ways, this is typically documented in a settlement agreement (vaststellingsovereenkomst).
In some cases, the employer may be obliged to continue paying wages (in whole or in part). This depends on the circumstances and the extent to which parties act reasonably.
Unlike medical illness, situational incapacity does not automatically trigger the dismissal prohibition (opzegverbod). However, your employer still has a duty of care and must act reasonably. Get proper advice about your position.
Sometimes termination of employment by mutual agreement is the best solution. With proper negotiation, you may retain entitlement to unemployment benefits (WW-uitkering) from the UWV.
It can also happen that the occupational physician does not recognize situational incapacity - for example, because they believe the situation is not sufficiently attributable to the employer or the work environment.
This has consequences for your wages. The starting point is 'no work, no pay', unless circumstances mean this cannot reasonably be expected of you as an employee.
Do you have questions about this topic? At LegalBacking, you can come to us for guidance and legal assistance.
At LegalBacking, we stand 100% on the side of the employee. We guide you through situational incapacity for work and help you protect your rights.
Get in touch