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Several court opinions show that employers are to make a careful considerations before deciding not to follow a company doctor's advice to mediate. This particularly applies if that doctor has found that a situation qualifies as a labour conflict rather than as an employee being ill. An offer of mediation by an employee cannot simply be denied either. Although the actual situation in these court cases were not alike, it is clear that employers must have proper grounds not to follow an advice or to reject an offer.
County Court judges earlier ruled that not engaging or not being willing to engage a mediator means that the compensation awarded to employee in a court case will be higher. A Maastricht County Court ruling shows that an employer not following the doctor's advice to take up mediation may even result in rejecting the application for an order to terminate the employment contract. In this case, the company doctor informed the employer that the employee was not medically impaired but that in view of the situation at work, his return would revive his symptoms. The doctor advised mediation. The employer did not follow his advice and applied for an order to terminate the employment contract. The County Court found that the employer should not have ignored the advice to take up mediation in order to solve the deadlock and subsequently dismissed the application. It is unclear whether this court reasoning will prove to be consistent.
In another case, the Amsterdam County Court ruled that the employer did not have the obligation to follow the company doctor's advice for mediation. Also here, the doctor found that there was a labour conflict and advised mediation. The employer applied for termination of the employment contract. The court ruled that the employer was not required to follow the urgent advice of the company doctor because under the circumstances, the employer evidently did not pin much faith in continuation of the employment.
If you have any question, please contact Nicole Sjoer, T: 020 6789 576, E: [email protected].
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