Concealing health problems when entering employment can be costly for employee

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Date:
27 Jun 2022

By:
Thomas van der Toorn

Although the employment contract is regulated as a special contract by law, the so-called 'general contract law' also applies to the employment contract. This means that the employment contract can be annulled due to threat, deceit, or abuse of circumstances and due to error.

Recently, a court ruled on this issue, with unfavourable consequences for the employee. What was at issue?

An employer (a secondary school) had invoked the nullity of the employment contract on the grounds of error, without the intervention of the court. The employer thus made use of a different form of termination of the employment contract. Normally an employer must be able to provide reasonable grounds for terminating an employment contract and, in principle, the prior approval of the court (or the UWV) is required.

In its judgment, the court confirmed that an employment contract can also be annulled outside the court ('out of court') on the grounds of an appeal for error. In doing so, the protective function of employment law must be taken into account. However, this protection does not extend so far that an employee who commits deception or error when concluding the employment contract must be protected. In that case, the protective rules on dismissal are therefore abandoned.

Duty of notification during application

In principle, an employee is not obliged to tell during the application process that he/she is or has been ill. And the employer is not allowed to ask about the candidate's health or about sickness absence at the previous employer. These kinds of questions may only be asked during an appointment examination (medical examination) and such an examination is only permitted for a limited number of positions.

This does not alter the fact that in certain cases the candidate must inform the potential employer about his/her health on his/her own initiative. This is, for example, the case when the employee knows that his/her medical complaints may cause problems for the (proper) performance of the work. In that case, the candidate may not remain silent and must speak up.

Options in case of violation of reporting duty

If it turns out that the employee has unjustifiably failed to inform his/her employer about his/her health during the job interview and this constitutes grounds for the employer to terminate the employment contract, the employer has a number of options. The employer could argue that this constitutes an urgent reason for immediate dismissal (deception during the job interview). It would also be possible to request from court the dissolution of the employment contract on the grounds of culpable behaviour. The disadvantage of both these routes is that they require legal proceedings. This takes time and the outcome is uncertain.

Another option would be to nullify the employment contract on the grounds of error. The employer can do this by letter to the employee and in that instance, it is up to the employee to take action against this.

Requirements for error (and omissions)

The employment contract can only be annulled on the grounds of error if, at the time the employment contract was signed, an employee was in possession of information concerning his/her health significant to an extent that he/she should have informed the employer of it. Such information is present if, at the time of concluding the employment contract, an employee knew that his/her state of health was such that it would seriously and permanently hinder him/her in the performance of the agreed work.

An employer's claim on the grounds of error regularly fails because the legal requirements for it are not met. For example, because the health condition at the time the employment contract was concluded was not yet as bad, or because the employee could not have been aware at that time of the seriousness and influence of the health problems on the performance of his work.

Ruling Cantonal Court of The Hague

In the judgment of 12 May 2022 rendered by the Cantonal Court of The Hague, the appeal to error did succeed. It concerned an employee (a teacher) who had been employed since 1 August 2021 based on a fixed-term employment contract (until 21 July 2022) for 0.8 FTE.

Before the employee started working for the employer, she was employed elsewhere, based on a fulltime contract (1 FTE). At this previous employer, the employee had become incapable for work. She eventually resumed her work for 80% and maintained this 0.8 FTE-level until the end of her employment. The former employer did not extend the employment contract, as a result of which the employee left employment (partly) incapable for work. She then claimed sickness benefits.

The employee then applied for a job with the current employer. During the job interview, the employee's sick leave and sickness benefits were not discussed. The former employer, who was given as a reference, did not mention this either. The employee was hired on 1 August 2021 for 0.8 FTE.

Shortly afterwards, the employee reported sick and visited the company doctor. The company doctor concluded that the employee had already been incapable for work at the start of her employment. As a result, the employer stopped the salary payment and declared it repealed retroactively. And - as stated above - the employer nullified the employment contract out of court on the grounds of error. The employer argued that it was established that the employee was already incapable for work at the start of the employment and that she deliberately concealed her illness in order to induce the employer to enter into an employment contract which it would otherwise not have entered into.

The employee took the matter to court and requested, amongst other things, that the extrajudicial annulment on the grounds of error should be declared invalid. According to the employee, there was no question of error as she had also worked for the previous employer for 0.8 FTE, and this suited her well. With the new employer, she also worked for 0.8 FTE, so there was no question of such complaints that she knew or should have understood that they would make her incapable for her job. The employee felt that for this reason, that she was not obliged to provide information. According to the employee, her (current) illness was related to poor and difficult working conditions at the employer.

However, the court found in favour of the employer. The court did not consider the employee's argument - that she should be considered capable for work for 0.8 FTE and therefore had no duty to provide information - to be tenable.

The court considered that it had not been established that, with an employment scope of 0.8 FTE, there was no question of incapacity for work. On the contrary, at the time the employment contract was signed the employee was, due to her health complaints, still undergoing treatment and had not yet fully reintegrated with her previous employer.

The employer had also provided concrete examples that the employee's lack of social interaction had led to poor performance and difficult communication with colleagues. For example, over a period of one and a half months, the employee had removed a pupil from the class 37 times (which is not an average number), the employee had walked out of the class on a number of occasions, and once part of the lesson had been taken over by someone else.

The court concluded that, despite her reintegration, the employee was (partially) incapable for work at the time the employment contract was signed. As the health complaints were of such a nature that they could affect the performance of the work and, moreover, could lead to an obligation for the employer to start a reintegration process for the employee, the employee should, according to the court, have informed the employer of her partial incapacity for work.

Under specific circumstances, an employment contract can therefore be validly annulled without court intervention on the grounds of error, for example if the employee did not disclose his/her health at the start of the employment.

Please note, the threshold for this is high and whether it is met depends on the circumstances of the case. The ruling above shows which circumstances can be taken into consideration.

Do you have any questions about your options in case the employee does not disclose the facts when entering into service? Please, do not hesitate to contact us.