The Privacy Protection of the Sick Employee: The Dutch Case from a Comparative Perspective
| Date | 01 September 2013 |
| Published date | 01 September 2013 |
| DOI | 10.1177/138826271301500303 |
| Author | Ivo van der Helm |
| Subject Matter | Article |
European Jour nal of Social Secu rity, Volume 15 (2013), No. 3 273
THE PRIVACY PROTECTION OF THE
SICK EMPLOYEE: THE DUTCH CASE
FROM A COMPARATIVE PERSPECTIVE
I H*
Abstract
i s arti cle de als wit h the pro tecti on of an e mploye e’s healt h data w hen the employ er
has to pay sick pay and reintegrate the sick employee. e Regulations of the Council
of Europe and the European Union require that domestic law o ers appropriate/
adequate safeguards for the protection of health data when they are processed for
employment purposes. ere is a discussion of way in which the Dutch system
provides these safeguards , compared with systems in other European countries. It
appears that legal safeguards for the protec tion of health data in the Dutch system
are comparable with those in other European countries. In practice , however,
there may be a risk in the Dutch system that the company doctor will provide the
employer with medical information, even when he/she is not per mitted to do so. e
doctor’s independent position and the observance of patient con dentiality may, in
some cases, come under pressure. e author proposes changing the organisation of
company doctors in the Netherlands so a s to strengthen their position.
Keywords: company doctor; European data protection law; med ical data; national
data protection laws; privacy; sick pay
1. INTRODUCTION
is article deals with privacy protection for employees when the employer has to
pay sick pay and has to reintegrate the sick employee. It is a short Dutch case study
seen from a comparative context in wh ich some aspects of the administrat ion of sick
pay rules are discussed. is topic of the privacy protection of the sick employee is
also relevant for other European countries. In some European countries statutory
* Dr. Ivo van der Helm is Assi stant Profess or of Labour Law an d Social Sec urity Law i n the Depar tment
of La w at Ut rec ht Uni vers ity, t he Ne the rlan ds. Addr ess: Acht er Si nt Pie ter 2 00, 3512 H T Utr echt ; tel :
+31 30–2534381; e-mail: i.vanderhelm@uu.n l.
Ivo van der Helm
274 Intersentia
or labour law regulations impose an obligation on the employer to pay sick pay (or
continued wages) to the sick employee. is study concerns the legal systems of twelve
European countries in addition to the Netherlands: Austria, Belgium, Denmark,
Finland, France, G ermany, Great Britain, Ireland, Italy, Portugal, Spain and Sweden.1
In some of these countries, statutory law or collective labour agreements specify that
the employer must pay sick pay for a speci ed period. is is the case in Aust ria,
Belgium, Denmark, Finland, Germany, Great Britain, Italy, the Netherlands and
Sweden. In most cases, the employer only pays sick pay for a relatively short period,
and, a er that, t he employee receives a social security bene t. In France, Ireland,
Portugal and Spain, employers do not pay sick pay and the sick employee receives
a sickness bene t provided by the socia l security system. e Dutch system is
exceptional because the employer has to pay sick pay for a maximum period of two
years. In the Dutch sys tem the employer is fully responsible for the income protection
of the sick employee, whereas in many other countries this responsibilit y − a er a
short period of employer’s responsibil ity − is taken over by th e social securit y system.
is exceptional system in t he Netherlands resulted f rom a change in policy.
Before 1994, the sick employee was only entitled to a sickness bene t provided by
the social security scheme under t he Sickness Bene t Act. e Employees’ Bene ts
Authority was responsible for the monitori ng sickness bene t and for providing advice
on reintegrat ion. A er 1994 sickness bene t was gradually replaced by an obligation
on the employer to pay wages during periods of sickness. e aim of government
policy was to reduce the number of cl aims for sickness and disabi lity bene ts. In 1994 ,
the employer had to pay the rst six weeks’ wages during sickness. is period was
extended to 52 weeks in 1996, and extended again to 104 weeks in 2004 . is policy
appeared to be e ective because the sick ness bene t gures d ropped signi cantly.2
However, this policy also had some problematic aspects. In the literature, and also
in the Dutch Parliament, the implications for privacy protection of the employee
have been debated.3 e obligation on the employer to pay sick pay creates a tension
between the employer’s need to obtain the necessa ry information and the need to
respect the employee’s private life. Because the employer has to determine t he right
to sick pay and must take underta ke speci ed reintegration measures, he needs to
obtain information about the employee’s personal situation and, in particular, about
the employee’s the illness. On the other ha nd, the employee’s fundamental right to
privacy must be especially respected because data about the employee’s health are
considered to be sensitive data. e right to privacy is not, however, an absolute right,
and can be restric ted in the legitimate interests of the employer if the means used to
achieve this aim a re proportionate.
1 e informat ion source for national labour law syst ems is Blanpain (2010); and for privacy laws,
Hendrickx (20 03). See the references referring to t he di erent se lected countries.
2 See, for more infor mation about the back ground of the Dutc h policy concern ing sickness a nd
disabilit y, Knegt and Westerveld (2008).
3 Gevers (1994); Rommelse (1994); Parliamenta ry Papers, 2nd Chamber, 1995–1996, 24 439: 3 and 6.
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