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Strengthening of the legal position of flex workers

Publication date: 2 January 2020
As of 1 January 2015, the legal position of flex workers has been strengthened.

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Tightening of the regulation regarding successive fixed-term contracts (as of 1 July 2015)

Employees with fixed-term contracts will sooner be entitled to an employment contract for an indefinite period. The so-called ketenregeling will be tightened. In successive fixed-term employment contracts succeeding each other within a period of six months (currently: three) the fourth contract or a period of two years (currently: three) will constitute an employment contract for an indefinite period. As of 1 January 2020 the period is three years (instead of two).

No trial period in short fixed-term employment contracts

Fixed-term employment contracts of six months or less may no longer include a trial period clause. In addition, in conformity with current case law, it will be included in the Dutch Civil Code that a trial period clause is null and void in the event of successive employment contracts. The only exception is a new employment contract that explicitly demands other skills or responsibilities. In that case a trial period clause will apply.

Non-competition clause in fixed-term employment contracts

Fixed-term employment contracts may no longer include a non-competition clause. This is only permitted in exceptional cases. In such a case, the employer must motivate in detail in the non-competition clause itself what the considerable business interests are that require a non-competition clause.

Term of notification

Upon the expiry of a fixed-term employment contract lasting six months or longer, the employer must notify the employee at least one month before the employment contract expires about (1) whether or not the employment contract will be renewed and (2) the conditions under which the employment contract might be continued. If the employer fails to notify the employee entirely about whether or not the employment contract will be renewed, the employee will be entitled to a compensation of one month’s salary. In the event the employee will not be notified in a timely manner, the employer must pay a compensation pro rata.

As of 1 January 2015, the term of notification is effective for all existing and new fixed-term employment contracts of six months or longer.

Limiting exception of obligation to continue to pay salary

The period in which the obligation to continue to pay salary may be excluded (for instance, in the event of illness or reduction of activities) will be limited. In contrast to the current situation, the obligation to continue to pay salary can in principle not be excluded by CAO for a period longer than the first six months of the employment contract. Only with respect to employment contracts through temporary employment agencies and to jobs, whose activities are by nature incidental and without a fixed scope, it will remain possible to exclude, by way of a CAO, the obligation to continue to pay salary. As regards the first six months of the employment contract, it will remain difficult to exclude the obligation to continue to pay salary from individual employment contracts. This possibility can be excluded on request to the Labour Foundation by the Minister of Social Affairs and Employment for certain industries, in the government programme it was agreed that such a request will be granted for zero-hours healthcare contracts.

The current possibility to exclude the obligation to continue to pay salary will remain effective for employment agreements entered into before 1 January 2015.

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