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An employer may only stop paying wages to a sick employee on grounds of intent if the employee intentionally desired the incapacity for work — not if he merely did something dangerous. Furthermore, the employer must inform the employee without delay as soon as suspicion arises that there are grounds to stop wages; waiting too long forfeits the employer's right to intervene.
If an employee is ill or incapacitated for work, the employer must in principle continue to pay wages. There are exceptions to this obligation to continue paying wages, for example if the employee hinders their recovery or has intentionally caused their incapacity for work. A notable case concerned the latter.
The case: employee injures his hands while making fireworks
An employee was mixing substances in a shed at home to make his own fireworks. The mixture exploded in the process, and he sustained severe hand injuries, rendering him completely incapacitated for work. The employer (roofing company Dak Totaal Noord) believed that the act was intentional and therefore—following advice from the company doctor, several weeks later—stopped wage payments. He invoked Article 7:629, paragraph 3, opening words and (a) of the Dutch Civil Code: an employee is not entitled to wages if the illness was caused by his intentional act.
What does “intent” mean in the context of continued payment of wages?
The core question is what constitutes “intent.” In case law, the employee must have willed the incapacity for work himself. It is therefore not sufficient that he intentionally did something unsafe — he must have intended the consequence (the injury/incapacity for work). The employee intended to make fireworks, not to blow up his hands, and therefore the District Court of Northern Netherlands (ECLI:NL:RBNNE:2021:148) ruled that there was no intent. The employer was required to continue paying the wages.
The immediacy requirement: report it immediately
The employer also received a second reprimand. If an employer suspects that there are grounds to suspend wage payments, he must inform the employee of this without delay — as soon as the suspicion arises or should have arisen. The employer was aware of the facts weeks earlier but only informed the employee later. That is not without delay. Important: a provision in the employment regulations (for example, “first await advice from company doctor”) cannot undermine that requirement of immediacy.
In principle, 100% wage continuation applied pursuant to the Construction Industry Collective Labour Agreement; the sub-district court reduced this to 70% on the grounds of reasonableness and fairness, without statutory interest or surcharge.
What does this mean for employers?
- Termination due to “intent” is only possible if the employee intended the incapacity for work themselves — a high hurdle.
- Do not wait for a final judgment: inform the employee without delay as soon as there is a suspicion that there are grounds to suspend wages.
- Employment regulations may not contravene protective statutory rules for employees.
Frequently Asked Questions
Am I allowed to stop paying wages if an employee was reckless?
Recklessness or a dangerous hobby is usually not enough. For termination due to intent, the employee must have willed the incapacity for work themselves, which is rarely the case.
What does “inform without delay” mean?
That you inform the employee as soon as there is a suspicion that there are grounds to suspend wage payments. Waiting too long, even while awaiting advice, may cost you the right to intervene.
Can my employment regulations modify the immediacy requirement?
No. An internal provision cannot set aside or undermine a protective statutory rule.
Stopping salary? Seek legal assistance
Anyone wishing to stop wages must act quickly and correctly. The employment lawyers at MKB Juristen draft a proper notice and assess whether the stoppage will hold up. View our expertise in employment law or schedule an intake interview .
