Settlement agreement concluded in error?


A sick employee did not want to undergo treatment and her employment contract was terminated

A recent case before the Court of Appeal in Den Bosch involved an employee, employed by Stamicarbon since 1989, who called in sick on 7 September 2020. The occupational physician had advised a course of treatment consisting of 15 weekly appointments with a psychologist. According to the employee, this advice had caused her to experience stress symptoms. On 15 July 2021, she developed gastritis caused by stress and therefore discontinued the course of treatment with the psychologist. In an interview on 6 August 2021, the employer presented her with the choice of either to continue the course of treatment or leave her employment under a settlement agreement (“SA”). The employee opted for the latter and signed an SA on 12 August 2021, according to which she would report as having recovered, leave employment as of 16 November 2021 and receive a transition payment. The employee did not then avail herself of the statutory 14-day reflection period.

According to the Sub-District Court, error cannot be established in interim relief proceedings
On 21 October 2021, the employee annulled the SA due to error and issued interim relief proceedings seeking continued payment of her salary. The Sub-District Court dismissed her claims because the error could not be established in interim relief proceedings. According to the court, this required a further factual investigation which was not available in interim relief proceedings. The employee appealed the decision.

The Court of Appeal found that there had indeed been error due to the absence of a clear and unambiguous statement.
It held that, in terms of established case law, an employee’s termination of the employment contract requires a clear and unambiguous statement aimed at terminating the employment contract. However, the contract had not been terminated. Instead, an SA had been signed. Yet the Court of Appeal applied the same standard in this regard and concluded that Stamicarbon had provided the employee with too little information, which was also too one-sided. It held that threatening to stop paying the employee’s salary if she did not continue with the course of treatment was too premature. The employee had been put under psychological pressure to sign the SA, subjecting her to renewed stress. Stamicarbon should have avoided this for the very reason that the employee had already suffered from gastritis. The Court of Appeal found that Stamicarbon had breached its reintegration obligations by giving the employee just two choices (continuation of the course of treatment or dismissal). In a nutshell, the employee was entitled to continued payment of salary.

Tip for employers: make sure that the employee hires a lawyer.
In our opinion, this ruling by the Court of Appeal in Den Bosch is correct. The sick employee was not assisted by a lawyer when the SA was concluded, nor did Stamicarbon alert her to the option of engaging one. According to the Court of Appeal, the fact that the employee had not been fully informed meant she was not in a position to make a clear and unambiguous statement regarding the termination of her employment contract. Nor did the employee realise that she might be harming her prospects under the Sickness Benefits Act (Ziektewet) by accepting an SA.

In our opinion, this employee could not have pleaded error if she had been assisted by a lawyer. All this means that it can also be important for employers to get a sick employee to seek advice about ending his or her employment contract.


About the author

Sander Theunissen

+31 (0)6 114 99 465

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