Salary suspension, salary withholding or dispute about continued payment? MediRights assesses whether the sanction is justified and helps recover your salary.
During illness, you are entitled to continued salary payment. This is established in Article 7:629 of the Dutch Civil Code. Your employer must continue to pay at least 70% of your salary during the first two years of illness. In the first year, this may not fall below the minimum wage. Many collective agreements and employment contracts have better terms, often 100% in the first year and 70% in the second.
In practice, salary suspension and withholding are sometimes used as pressure tools. A salary suspension is a drastic measure subject to strict conditions. Employers who don't know or ignore these conditions risk applying sanctions unlawfully.
The difference between salary suspension and salary withholding is legally relevant. With a salary suspension, you permanently lose the right to salary for the relevant period. With salary withholding, you retain the right to your salary, but the employer only pays once you comply with the rules again. Employers regularly confuse these concepts, with legal consequences.
MediRights assesses whether a salary sanction has been rightfully imposed and helps recover wrongfully withheld salary. We know the legal requirements and case law in this area.
Employers often use these terms interchangeably, but legally they are different instruments with different consequences.
Note: if an employer announces salary withholding when a salary suspension is intended, they must still back pay the salary once the employee complies. Incorrect qualification can have legal consequences for the employer.
The law names specific situations in which the employer may suspend salary. Outside these situations, a salary suspension is unlawful.
If the employee refuses suitable work without valid grounds, salary may be suspended. However, the employer must demonstrate that the offered work is actually suitable given the limitations.
If the employee obstructs or delays their own recovery through their own actions, a salary suspension may follow. This requires concrete evidence of obstruction, not merely a suspicion.
Refusal to cooperate in preparing, evaluating or adjusting the action plan can justify a salary suspension. Here too: there must be actual refusal.
If the employee refuses without good reason to apply for a WIA benefit, salary may be suspended. This only comes into play at the end of the 104-week waiting period.
The employer must warn in writing beforehand that they are considering a salary suspension or withholding. Without this warning, the sanction is generally not permitted. This is a formal requirement that is often ignored.
The employer has a duty to inform: they must immediately let the employee know that and why they are imposing a sanction. Imposing a salary suspension retroactively is not permitted.
The employer must cite the correct legal basis. A salary suspension for the wrong reason is contestable. The employer must also be able to prove that the situation falls under the statutory exceptions.
The measure must be proportionate to the violation. A complete salary suspension for a minor negligence can be disproportionate. The court also tests against reasonableness and fairness.
If a salary suspension was wrongfully imposed, you are entitled to back payment of the withheld salary, plus statutory interest and possibly statutory increase.
The employer owes statutory interest on late paid salary. This interest runs from the moment the salary should have been paid until actual payment.
In case of late payment, the employee can claim a statutory increase of up to 50% on the overdue salary. The court can moderate this increase and regularly does so, depending on the circumstances.
If you need to engage a lawyer or legal professional to get your salary, those costs can be charged to the employer. These are called extrajudicial collection costs.
For a salary claim through the subdistrict court, an expert opinion from the UWV is often requested in practice. This opinion can confirm that you are incapacitated for work or that the employer is falling short.
We assess whether the salary suspension is legally tenable. Was the correct procedure followed? Is the legal basis correct? Were the formal requirements met? We give you an honest assessment of your chances.
For an unjustified salary suspension, we send a substantiated demand letter to the employer. Often, a legally correct demand already leads to resumption of salary payment without further proceedings.
If necessary, we guide the application for an expert opinion from the UWV. This opinion can significantly strengthen your position in a salary claim.
We negotiate on your behalf with the employer about resumption of salary payment and back payment of overdue salary. A negotiated solution is often faster and less stressful than proceedings.
We help recover overdue salary, including statutory interest and statutory increase. If necessary, we prepare summary proceedings or full proceedings.
We ensure your actions don't weaken your position. Wrong steps can damage your reintegration file. We guide you through the process without unnecessary risks.
Some collective agreements or employment contracts include one or two waiting days when reporting sick. During these days, you don't receive salary. Check whether these waiting days are contractually agreed.
If your temporary contract expires during illness, continued salary payment stops. You may then be entitled to a Sickness Benefits Act benefit through the UWV.
Special rules apply to illness caused by a workplace conflict. The Supreme Court has ruled that even then, entitlement to continued salary payment can exist. However, this requires that the employee actively cooperates in finding solutions and does everything reasonable to break the situation.
After two years of illness, the salary payment obligation ends in principle, unless the UWV has imposed a salary sanction. In that case, the employer must continue paying for up to one more year.
Have it assessed whether the salary suspension is justified and what your options are. MediRights is ready to help you.
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