Farhana advises international and national entrepreneurs and organisations.
farhana.mahabali@russell.nl +31 20 301 55 55Employers are no longer allowed to prohibit ancillary activities of employees without any reason. But what can you, as an employer, do to prevent your company or your employees from getting into trouble because they take on another job?
Currently, most ancillary activities clauses contain an absolute prohibition on ancillary activities. From 1 August 2022, a prohibition to perform ancillary activities will only be valid if it can be justified on the basis of objective grounds.
However, the legislator does not point out what an ‘objective ground’ is. The Working Conditions Directive does mention a few examples, such as:
There might also be objective grounds if the employee works more hours than permitted under the Working Hours Act. In order to assess whether there is an objective ground, the employer must assess it in terms of its effectiveness (suitability and appropriateness) and proportionality. The interests of the employee also have to be taken into account.
As of 1 August 2022, clauses will be immediately null and void if they prohibit ancillary activities or contain grounds which are not ‘objective’. As an employer, you can however repair this nullity by giving an objective ground when you want to prohibit ancillary activities.
It is advisable to include an amended ancillary activities clause in new employment contracts, which states that ancillary activities are only prohibited subject to objective grounds. We advise you not to include any concrete objective grounds in the clause; after all, you only have to give an objective ground when you actually invoke the clause. That way, you as an employer are not restricted to the grounds stated in the clause.
Do you have any questions about the new regulation of ancillary activities of employees? Do you want us to check your ancillary activities clauses? Or do you have any other employment law issues you would like to submit to a lawyer? Please contact us:
On the departure of a statutory director/shareholder, any participation in the company must also be settled. Then a discussion may arise about the value of this participation, depending on whether the director counts as a good leaver or bad leaver. What should companies and directors pay attention to when interpreting a leaver arrangement?
An employer can include a resolutive condition in the employment contract. However, this can only be done in exceptional cases. What requirements must a resolutive condition meet? Is the employee entitled to transitional compensation when the resolutive condition takes effect?
The government has detailed its plans for tightening non-competition clauses in a legislative proposal. What are the proposed conditions for valid reliance on a non-competition clause? How will the proposal affect existing clauses?
Probably as of 1 July 2024, terminating temporary lease of residential accommodation will become more difficult for landlords. However, there are some exceptions. What are the new rules for temporary letting of residential accommodation?
How is your works council performing this year? As a works council, do you have many requests for advice and consent? Do the legally required consultation meetings with the company take place? Use our brief checklist to assess your cooperation with the company.
In his interview on “Hidden Gems – Treasured artwork adds to allure of Netherlands”, Reinier Russell talks about how artworks still reflect the spirit of the Golden Age and where they can be found.
