Duty to speak for a job applicant with a medical disability
The physical and psychological condition of job applicants is often crucial to their suitability for jobs. Yet asking about a medical disability or chronic illness is only permitted for special jobs that require a medical examination, such as police officers or professional football players.
What can job applicants be expected to share about their health information and is there a duty of disclosure regarding chronic illness or medical disabilities? The sub-district court in Eindhoven ruled on this in August 2023 (Oost-Brabant District Court, 30 August 2023, ECLI:NL:RBOBR:2023:4388).
Oost-Brabant District Court ruling
An employee, who was employed on a fixed-term basis, became 50% unfit for work due to limitations in maintaining focus, dealing with deadlines and prolonged standing and sitting. She later called in fully sick and said she had fibromyalgia, a condition that causes chronic pain in muscles and connective tissue.
When the employee partially resumed her work, the employer offered her a termination agreement. She refused, whereupon the employer indicated in an interview report that it was annoying that the employee had not said anything during the job application process about her clinical picture and its consequences for her performance and employability.
The employer then annulled the employment contract with immediate effect and, insofar as that might not be upheld, it dismissed her summarily for concealing essential medical information during her job application.
The employee asked the sub-district court to annul the termination and asked the employer, in turn, to rescind the employment contract.
The sub-district court’s opinion
An employment contract can be annulled for error if an employee has “such information” about their health when entering into it that they should have informed the employer. There is “such information” if the employee “actually knew that his or her state of health was such that it would substantially interfere with his or her ability to perform the agreed work for a long time.” (Oost-Brabant District Court, 30 August 2023, ECLI:NL:RBOBR:2023:4388, at para. 6.4).
According to the sub-district court, this was not the case; there was no evidence of the employee knowing that her state of health would substantially interfere with her work for a long time. Important factors were that:
- the employee had performed adequately during the first two months of her employment;
- the occupational physician’s reports provided no evidence of any active duty of disclosure;
- the employee did not have to infer from the job description that her limitations made her unfit for the position; and
- the occupational physician’s report provided no evidence that the complaints stemmed from her condition.
Consequently, the claim of error was not upheld.
The summary dismissal was also rejected; although concealment of medical complaints can be a pressing reason for dismissal if the employee knows or should understand that they are unfit for the job because of complaints, that was not the situation. The employee did not know about her employment disability when she entered into the employment contract and there was no need for her to know this. As a result, she had not violated any duty of disclosure or otherwise acted culpably, the sub-district court said.
Finally, the sub-district court also rejected the request for rescission because it was related to the employee’s illness and the ban on termination during illness precluded rescission.
Conclusion: sometimes a job applicant has a duty to speak
In principle, employees are not obliged to disclose their medical disabilities on their own initiative unless they know or should know that these medical disabilities make them unfit for the job. If an employee fails to do so, they run the risk of having their wages stopped or the employment contract terminated, whether by summary dismissal or otherwise.
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