Employment Contract of Long-term Incapacitated Employee, to whom the UWV had Granted a WGA-benefit without an Insurance Medical Examination, was Dissolved

The fact that no recent medical UWV information about an incapacitated employee was available, due to the simplified assessment claims of employees aged 60 and over, did not preclude dissolution of the employment contract for long-term labour incapacity.

In January 2022, a pedagogical staff member of a nursery school had become incapacitated for her work. When 104 weeks later, the employee was still ill, the UWV granted her a WGA- benefit, calculated on the basis of a labour incapacity degree of 80-100%. Since the employee was over 60 years of age, this could be done without the UWV having a prior medical insurance and occupational health and safety examination carried-out..
The employer and the employee had both given consent to the UWV.

The nursery school had offered the employee a settlement agreement in order to terminate the employment contract. The employee refused to sign it, however, because she expected to be fully recovered and to resume her work within a reasonable period of time.
Then the employer applied to the UWV for a dismissal permit. In the context of this dismissal procedure, the occupational physician declared on the one hand that his expectations were that the employee would not be able to fully resume her own work within 26 weeks, but on the other hand that the employee had indicated that she believed that partial work resumption within 26 weeks would be possible, and that this was neither medically impossible nor undesirable, but that it could not be tested because the employee did not yet work.
This declaration gave the UWV sufficient reason to refuse the requested dismissal permit.
The UWV pointed out that the employee had been referred for treatment and that the occupational physician expected that the treatment would be rehabilitative. Therefore it could not be ruled out that the employee would be suitable for her own work in an adapted way within 26 weeks. In that case, a dismissal permit cannot be granted.

Then, the employer submitted a request to the Sub-district Court to dissolve the employment contract. In that context, the occupational physician provided a more detailed explanation of his previous statement in which he indicated that he could not medically refute that the employee would be capacitated to perform her adapted work for fewer hours, but that he expected that her health problems and limitations would only grow again if she were to try to do so.
In the proceedings before the Sub-district Court, however, the employee maintained the argument that there would be opportunities for adapted work within 26 weeks. The employer, on the other hand, did not consider it justified that the employee should perform her work in fewer hours with adapted tasks. In order to be able to do her work in an accountable way, the employee should be able to lift. In urgent situations she should also be able to intervene, without the help of her colleagues.
The Sub-district Court understood the occupational physician 's position so, that he could not medically rule out that the employee might recover within 26 weeks, but that the medical situation had not significantly changed and that there was a real risk that the limitations would grow if the employee would resume her work in the next few months, as had been the case before.
The lack of more recent medical information about the employee's ability to work was the result of the fact that the UWV had awarded the WGA-benefit after a simplified procedure. The employee had opted for it because it gave her income security and the employer had cooperated so as not to short-change the employee.
Since there was no statement nor evidence that the medical situation had significantly changed after the UWV decision, the Sub-district Court dissolved the employment contract.

The so-called 60-plus scheme was established by the Minister of Social Affairs and Employment in order to temporarily relieve the UWV, due to the major shortage of insurance physicians. Employees aged 60 years or over at the end of the waiting period may be classified as fully labour incapacitated without having an examination by the insurance physician and the UWV occupational expert carried out, and includes the entitlement to a WGA benefit.
This temporary measure breaks the law. Therefore, both the employer and the employee have to give their consent. The measure is designed in such a way that there are hardly any reasons for either the employee or the employer to refuse this consent. The employee receives a WGA-benefit on the basis of full labour incapacity, but can still request the grant of an IVA-benefit and ask for support with reintegration. The employer does not have to pay for the granted WGA benefit.
The above decision of the Sub-district Court shows that, nevertheless, once the scheme is applied, complications may still arise.