On 16 October 2025, the Court of Appeal of ’s-Hertogenbosch published a decision that once again makes clear that suitable or modified work performed as part of the reintegration process of a sick employee does not easily become ‘new agreed work’.
Background
When an employee is ill, they generally remain entitled to continued salary payment for the first two years of illness. After this two-year ‘waiting period’, the employee may, under certain circumstances, still retain the right to salary payment, and in some cases even the right to reinstatement of the employment contract.
A key question in such cases is whether the employee has fully resumed their original job (the ‘agreed work’) or whether the modified work performed during reintegration has, over time, evolved into ‘new agreed work’. In practice, this distinction is often difficult to make, especially when the employee has been performing (slightly) adjusted duties for a long period, sometimes even for years.
Recent development
The Court of Appeal in ’s-Hertogenbosch recently confirmed that performing modified duties during illness does not automatically mean that new agreed work has been established.
The case involved a truck and crane operator who, following a workplace accident, had performed lighter, adjusted duties for several years. After the Dutch Employee Insurance Agency (UWV) granted permission for termination due to long-term incapacity for work, the employee argued that he had either resumed his original job or, alternatively, that his adjusted duties had become his new agreed work, and therefore the dismissal was unlawful.
The Court rejected this argument. According to the Court:
there was insufficient evidence that the employee had fully recovered and resumed his original duties;
medical and factual records did not show that he was structurally capable of performing his original position; and
the mere fact of performing adjusted work for a long period, without a clear and mutual agreement, does not result in a change to the agreed work.
This is consistent with established case law of the Dutch Supreme Court (Hoge Raad), which holds that new agreed work can only arise if:
there is an explicit agreement between the parties, or
the employee has legitimate grounds to believe that the suitable work he has been performing has effectively become the new agreed work.
What does this mean for employers?
This decision provides is helpful for employers dealing with long-term sick employees. The Court confirms that reintegration duties are, by default, temporary, unless both employer and employee expressly, or implicitly through their conduct, agree otherwise.
To avoid misunderstandings or disputes, employers are advised to:
clearly document whether modified duties are intended to be temporary or permanent;
confirm such arrangements in writing; and
carefully monitor and document the reintegration process.
In a labor market where sustainable employability is increasingly important, this decision highlights the value of transparency and legal certainty during reintegration, for the benefit of both employer and employee.