Rb. Midden-Nederland - UTR 19/1300

Rb. Midden-Nederland - UTR 19/1300
Court:	Rb. Midden-Nederland (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 4(15) GDPR Article 9(2) GDPR
Decided:	05.11.2019
Published:	22.11.2019
Parties:	Employee Insurance Agency (UWV)
National Case Number/Name:	UTR 19/1300
European Case Law Identifier:	ECLI:NL:RBMNE:2019:5275
Appeal from:
Appeal to:
Original Language(s):	Dutch
Original Source:	de Rechtspraak (in Dutch)
Initial Contributor:	n/a

The Court of First Instance of the Central Netherlands ruled that the Dutch sickness benefits act is compatible with the GDPR.

English Summary

Facts

The Dutch Employee Insurance Agency (UWV) fined an employer for the late reporting of an employee's sick leave with a no-risk insurance policy. According to Article 38b of the Sickness Benefits Act, an employee can ask an employer about a no-risk policy two months after the beginning of the employment. The employee at stake had been employed for more than three years and he had had enough time to ask about the no-risk policy. The employee claimed that asking about the no-risk policy was in conflict with the data protection rules under the GDPR because it is essentially ‘data concerning health’.

Holding

The Court found that Article 38b of the Sickness Benefits Act is not in conflict with the GDPR. Whether or not a no-risk policy applies is not relevant and there is no question on ‘data concerning health'. Moreover, processing under the GDPR would be permitted in this case even if there was health data and the exception of Article 9(2) GDPR would apply. The agency was therefore allowed to impose a fine on the employer.

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English Machine Translation of the Decision

The decision below is a machine translation of the original. Please refer to the Dutch original for more details.

DECISION

COURT OF THE MIDDLE THE NETHERLANDS
1. On 28 May 2018 employee [A] reported sick to the plaintiff. On 9 August 2018 he informed the plaintiff that a no-risk policy applies because he has an occupational disability. This means that the UWV pays the costs in the event of the employee's illness. Therefore, on 17 August 2018 the plaintiff applied for a Sickness Benefits Act benefit for the employee. The defendant awarded that benefit.

2. Pursuant to Section 28a of the Sickness Benefits Act (Ziektewet), the defendant imposed a fine of € 455 on the claimant because the claimant failed to report the employee's illness to the UWV within six weeks of the first day of illness. In the decision on objection dated 27 February 2019, the defendant upheld that decision.

3. The claimant does not agree with the decision on the objection and has lodged an appeal against it. The defendant has submitted a statement of defence. The case was heard at the hearing on 20 August 2019. The plaintiff has been represented by her agent S.J. Klarenbeek, accompanied by [B] . The defendant has deregistered.
The dispute

4. The plaintiff doesn't think it's fair that she was fined. It was only on 9 August 2018 that she became aware that the employee was covered by the no-risk policy. She acted appropriately by already sending an application for sickness benefit to the defendant on 14 August 2018.

5. The defendant took the position that the plaintiff could have been aware of the employee's no-risk policy much earlier. Pursuant to Section 38b of the Sickness Benefits Act, an employee is obliged to inform an employer of the applicability of a no-risk policy if the employer so requests. This obligation applies from two months after commencement of employment. According to the policy administration, the employee has been employed by the plaintiff since 1 January 2015. The plaintiff could therefore have asked the employee whether a no-risk policy was applicable as early as 1 March 2015. The fact that the plaintiff did not do so is at her expense and risk. The defendant referred to a decision of the Central Board of Appeal (CRvB) of 13 August 2017 (ECLI:NL:CRVB:2017:3129).

6. The plaintiff objected to the fact that she considers it contrary to the privacy regulations in the General Data Protection Regulation (AVG) to ask employees about the applicability of a no-risk policy. After all, this indirectly asks about an employee's medical history and existing work limitations. If a no-risk policy is applicable, this could also be a reason not to enter into an employment relationship with an applicant.
Considerations of the court

7. Pursuant to Section 38a(3) of the Sickness Benefits Act, an employer is obliged to report the employee's first day of illness to the UWV no later than six weeks after the employee's illness has been reported with a no-risk policy. If an employer fails to do so, a fine of up to € 455 may be imposed pursuant to the eighth paragraph of Section 38a. Section 38b(1) of the Sickness Benefits Act stipulates that the employee must inform the employer at his request about his possible entitlement to sickness benefit under a no-risk policy. This obligation does not apply during the first two months of employment.

8. In the opinion of the court, Section 38b(1) of the Sickness Benefits Act does not conflict with the AVG. By stating whether or not a no-risk policy applies, the employer is indirectly informed of the presence or absence of a work restriction (in the past). The employee is not obliged to inform the employer of the illness or deficiency that caused the work restriction, nor is the employer allowed to ask for such information. The employer therefore does not find out anything about the employee's physical or mental state of health. There is therefore no question of 'data on health' (Article 4, under 15 of the AVG). Insofar as the general requirements of the AVG are met, data on work limitations may therefore be processed by the employer. Moreover, processing would also be permitted on the basis of the AVG if it did involve 'data about health'. In that case, the exception in Article 9(2) of the AVG applies. This states (insofar as relevant) that data on health may be processed if this is necessary for the implementation of the obligations and rights of the controller (employer) or the data subject (employee) in the field of social security law, insofar as this is permitted under the law of the member state. Since enquiring about a no-risk policy is permitted under Section 38b(1) of the Sickness Benefits Act, it is not contrary to the AVG.

9. The claimant's fear that inquiring about the presence of a no-risk policy could influence the outcome of an application procedure is unfounded. Section 38b(1) of the Sickness Benefits Act explicitly states that this provision does not apply in the first two months after commencement of employment. This means that this article is not yet applicable in an application procedure.

10. In the District Court's opinion, the defendant correctly stated that the plaintiff could have been aware of the employee's no-risk policy much earlier. The fact that the plaintiff did not inform her about this is at her expense and risk. The plaintiff could and should have complied with the term of Section 38a(3) of the Sickness Benefits Act. As the plaintiff failed to do so, the defendant was entitled to impose a fine of €455 on the plaintiff.

11. The appeal is unfounded. There are no grounds for an order to pay the costs of the proceedings.
Decision

The court declares the appeal unfounded.

This decision was made by Mr. R.C. Stijnen, judge, in the presence of Mr. M. van der Knijff, registrar. The decision was pronounced in public on 5 November 2019.

Registrar Judge

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Legal remedy

An appeal may be lodged with the Central Board of Appeal against this decision within six weeks of the date on which it was sent.