Can you retrieve the company car after two months of sickness leave? (Trends 24-2-2022)

Under the Employment Contracts Act of July 3, 1978, the employment contract is suspended in the event of incapacity for work due to illness or accident. Consequently, subject to certain exceptions, the obligations of both parties are suspended. Specifically, the employee is exempt from performing the agreed work, while the employer is exempt from paying their salary.

However, the benefit in kind of using a company car for private purposes is considered a form of remuneration.

Therefore, unless otherwise stipulated in the employment contract, the existing car policy, or company practices, the employer theoretically has the right, in the event of incapacity for work, to (temporarily) reclaim the company car, for example, to assign it to a replacement for the sick employee.

However, the law requires the employer, under certain conditions and unless otherwise agreed by the parties, to maintain the employee’s salary, including benefits in kind, during the first month of justified incapacity for work. This is referred to as “guaranteed salary.”

Thus, the employer can only reclaim the company car after the period covered by the guaranteed salary; this period may be shortened in certain cases (e.g., refusal of medical control). In our case, after two months of illness, the employer does indeed have the right to take back the car, unless otherwise specified in the employment contract, car policy, or company practices.

If informal contact to recover the vehicle is insufficient, the employer may send a formal letter to the employee requesting the vehicle’s return.

Naturally, the employer must exercise this right reasonably and ensure the car is retrieved “smoothly.”

Upon recovery, the employee must be provided with a similar company car under the agreed terms.

The same reasoning applies to other benefits in kind (e.g., mobile phones, computers, internet access, or telework equipment).

Furthermore, in other cases of suspension of the employment contract (maternity leave, parental leave, military service, force majeure, short absences for court appearances, leave for urgent reasons, etc.), the employee generally loses the right to salary, including benefits in kind, unless otherwise stipulated by law (e.g., during paternity or adoption leave, the employee retains their salary for the first three days).

If the employee repeatedly refuses to return the vehicle, disciplinary action may be taken, and the employer may claim reimbursement of the leasing cost beyond the first month or even consider termination with or without cause, depending on the circumstances.

Additionally, the employer may take legal action to recover the vehicle, especially if it is company property.

Trends 24-2-2022