Temporary employment agencies and secondment firms are not allowed to prevent the employee from entering into employment with the hirer. However, it is possible to receive compensation for the costs incurred in connection with the recruitment, training and secondment of the employee.
Temporary employment agencies and secondment firms are not allowed to prevent the employee from entering into employment with the hirer. However, it is possible to receive compensation for the costs incurred in connection with the recruitment, training and secondment of the employee.
Pursuant to European law, temporary employees may not be prevented from entering into employment with a company they are seconded to. The idea behind this is that an employee may not be prevented from getting a permanent job.
In the Netherlands, this has been included in the Placement of Personnel by Intermediaries Act (Waadi). This Act does not only apply to temporary employment agencies but also to any other company that supplies personnel. Thus also to seconders, payrollers and even companies that occasionally place a staff member for a longer period of time with another company may be covered by this scheme. How can you prevent the application of the ban on obstructions to you and your employees?
The Waadi – hence the ban on obstructions – does apply to all situations where one company has an employee work under the “direction and supervision” of another company. It does not matter whether the employee has a temporary contract or a permanent contract with your company. If you have a person work in another company, however still under your direction and supervision, the Waadi does not apply. You can therefore avoid the ban on obstructions by demonstrably ensuring sufficient direction and supervision.
When is there sufficient direction and supervision? In order to determine this, the court will look at the arrangements you made with the hirer and their actual implementation.
Indications that the ban on obstructions applies are:
Indications that the ban on obstructions does not apply are:
Even companies that only occasionally supply or second employees often have a Waadi registration to prevent business with the Tax and Customs Administration. Does such a registration affect the ban on obstructions?
The court may derive from the Waadi registration that you do indeed supply personnel and therefore assume that the ban applies. However, registration is not decisive. If you can demonstrate that the employee works under your direction and supervision, the ban on obstructions shall not apply.
The ban on obstructions does apply and your employee switches to the hirer. Can you recover some of the investments you made in the employee? That is possible, but then you have to include in the contract with the hirer that he shall compensate you for the costs incurred for recruitment, training and secondment of the employee.
Would you like to second employees to other companies and prevent them from transferring to that company? We will be happy to assist you drafting a secondment agreement. Do you have any questions concerning employment contracts and temporary employment contracts, or do you need advice on any other employment-related questions? Please contact us:
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