An employee who calls in sick on his first day of work. If it is a case of the flu, the employer will usually not be so concerned. But when it comes to structural complaints with the prospect of long-term sick leave, things are often different. Is an employee required to report health complaints while applying for a job?
It happened to a branch manager of supermarket chain Hoogvliet. After the end of her first day of work, a new cashier sent the following WhatsApp message to her supervisor:
”I liked it a lot today, Only I got a lot of pain in my back during the day, I have a crooked vertebra in my lower back and unfortunately I feel it with sitting behind the cash register, I didn’t expect to feel it so bad. This bothers me so much that this job is unfortunately not going to be it. What I find super unfortunate, because I think you are a top company! I thought it would be fair to tell you right now. Shall I call you tomorrow morning?
The employer’s reaction was predictable. The employer would have found it even more honest and sensible if the employee had already mentioned her crooked vertebra during her job application. The employer therefore annulled the employment contract on grounds of error. If the employee had shared her complaints during the application process, Hoogvliet argued, the employment contract would never have been concluded.
The cashier could not agree and initiated proceedings. She asked the court to reverse the annulment of the employment contract. With success: the subdistrict court in Haarlem ruled that the employer should not have nullified the employment contract. According to the subdistrict court, there was no evidence that the employee already knew during her job application that she would develop complaints or that she would be unfit for her position. Indeed, before she joined Hoogvliet, she had not suffered from her back for some time. She was therefore also under no obligation to inform her new employer of any back problems during her job application.
Conclusion
The ruling of the Haarlem subdistrict court does not stand alone, but confirms the established line in case law: an employee is only obliged to provide information about a health condition during a job application if he knows that this condition makes him unsuitable for the job to be performed. Annulment on grounds of mistake or deceit is therefore not impossible, but the test bar is high. Indeed, the annulment option may not be used lightly to circumvent the employee’s dismissal protection.
The question is always: does the applicant know that the health problems make him unfit for his job? If so, he must inform his new employer of this before signing the employment contract. This question can only be answered on the basis of the concrete circumstances. What is clear is that the mere fact that someone has or has had complaints does not mean that he must know that he is unfit for the job.
