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Work on the side when sick: a case from the Netherlands

Written by
Bronsgeest Deur Advocaten, leading law firm in the Netherlands specialised in HR and employment law.
A Dutch court has ruled an employer was justified in dismissing an employee who took on outside work when she had been declared unfit for normal duties and was doing a phased return to work from home.


If an employee is unfit for work, both the employer and the employee have obligations. For instance, the employer must make arrangements to allow the unfit employee to do suitable work within (or outside) the company. Suitable work is work that is suited to the strengths and abilities of the employee at that time. On the other hand, the employee must perform this ‘suitable work’ if the employer provides him or her with that opportunity.

As a rule, an employee builds up his or her number of hours of (suitable) work, based on the advice of the company doctor regarding recovery and capacity to work. Usually an employee starts with a few hours work per week and works towards full reintegration.

In practice, an employee may work for another company in parallel to performing suitable work for his or her employer. But how does this fit with the employee’s workload capacity and the reintegration process with his or her main employer? And what can an employer do when it realises that the employee is working for another employer in addition to the suitable work provided, without having reported this to the employer or the company doctor, ?

In a recent case at the Rotterdam District Court, these were the central questions.

The facts

This case concerned a healthcare employee. As a result of a traffic accident, the employee had been ill since 16 March 2020. In September 2020, the reintegration process started. In November 2020, the employee’s duties were increased to 4 x 6 hours per week. In February 2021 the work was scaled down to 4 x 4 hours per week, due to a worsening of her disabilities. The advice of the company doctor was that this was her maximum work capacity at that moment.

In April 2021, the employer requested a current Certificate of Good Conduct (VOG) from the employee. The employee submitted a VOG dated 23 October 2020. The VOG mentioned a different employer and as a result, the employer suspended the employee. After further investigation, she was summarily dismissed in April 2021. The dismissal letter stated that during her employment contract with the employer and during the period of her incapacity for work, the employee had worked for another healthcare organisation without informing the employer or the company doctor.

The employee asked the court to annul her immediate dismissal because of the absence of an urgent reason.

District Court ruling

The court ruled that the immediate dismissal was justified. The employee acknowledged that during her incapacity for work she had worked for another healthcare organisation. The court considered that good employment practice meant it was up to the employee to inform her employer and the company doctor of this in advance. In that case, the company doctor would have been able to form a more accurate impression of the employee’s workload capacity.

The fact that the employee should have reported her secondary activities was even more important, as the employee physically worked for the other company on site, while during that same period, she was only doing administrative tasks from home for her employer on a ‘reintegration’ basis. That meant she was doing the type of work she originally did for her employer for the other company, during the period when she was not allowed to do it for her ‘main’ employer due to her medical restrictions.

By not informing her employer and the company doctor about her ancillary activities, the employee had withheld essential information from them and given an incorrect presentation of the facts, which the court found was a serious charge against the employee. According to the court, an additional factor was that the Collective Labour Agreement (CAO) for the Municipal Health Care Sector (GGZ), which applied to the employee, expressly prohibited the employee from carrying out ancillary activities that could not reasonably be reconciled with her position or with the interests of the healthcare institution.

In the opinion of the court, the ancillary activities were incompatible with her position, because these activities could lead to a working week of 64 hours in total. This could not be regarded as a realistic working week, considering both the employee’s health and her employer’s interests.

What does this mean for you as an employer?

Based on good employment practice, an employee should notify the company doctor and the employer if s/he wishes to perform ancillary activities during a period of incapacity for work. This is, among other things, to determine the employee’s workload capacity. If an employee carries out ancillary activities without prior notification during a period when s/he has been declared unfit for work, this may constitute grounds for immediate dismissal.

District Court of Rotterdam, 3 February 2022, ECLI:NL:RBROT:2022:1192

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Cathelijn Derks
Partner - Netherlands
Bronsgeest Deur Advocaten
Ilse Spee
Attorney - Netherlands
Bronsgeest Deur Advocaten