Second track reintegration: what does placement at another employer mean for the employment contract?

When an employee is on long-term sick leave, it is first and foremost up to the employer to reintegrate the employee into their own position within the organisation. This is referred to as the first-track reintegration. If it turns out that a return to the employee's own position is no longer possible, the first step is to investigate whether there is any suitable work available within the organisation. If it turns out that there are no such opportunities, then reintegration with another employer comes into the picture: the so-called second-track reintegration. This process can already be started in the first week of reintegration (8 weeks after reporting sick) and no later than week 52 (of the sick report). Usually, a second-track reintegration is completed within one year, but no later than two years.

If this second-track reintegration, with or without the help of a reintegration agency, succeeds in placing the employee at another employer, the question arises regarding the basis of the agreement under which the employee will work for the new employer. A common solution is secondment: the employee formally remains employed by the original employer, but actually works for the new organisation. Employers then make agreements between themselves about, for example, wage costs. An important advantage of this secondment arrangement is that the no-risk policy (wage compensation in case of illness) applies to the new employer.

Another possibility that arises in some cases is that the new employer offers the employee an employment agreement after a period of time. This is usually for a fixed term, but in exceptional cases for an indefinite period. It is important to distinguish between two moments when this can take place: before the employee has been incapacitated for work for two years, or after that.

Many employers assume that the employment contract they have with the employee automatically terminates by operation of law if the employee is offered a new employment agreement. However, this is not the case at either point in time (before or after two years of illness). Some employers even believe that an employee who is able to start working for another employer through a second-track reintegration can be obliged to terminate the employment contract with their own employer. This is also not the case.

The District Court ruled on this matter in 2022 (ECLI:NL:RBMNE:2022:1183), stating that the employment contract remains in force during the reintegration period (even with another employer). It considered that this follows from the twelfth paragraph of Section 7:629(12) of the Dutch Civil Code: "If the employee performs suitable work as referred to in Article 658a(4), the employment contract remains in full force."

In addition, it is important to note that the employer whose employee has started working for another employer through a second track program, is still obliged to pay the severance payment. If the employee has already started working elsewhere before the end of the two-year period of illness, it may be wise to only terminate the formal employment contract with this employee after this two-year period has been reached. If the employment contract is then terminated by mutual agreement with the award of the severance payment, it will be possible to request compensation for this payment at the Employee Insurance Agency (‘UWV’) until 1 July 2026. In any case, there is no right to this compensation if the employment contract is terminated earlier than after two years of illness.