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The employer and employee may agree on a probationary period. It provides the employer the possibility to assess the employee’s suitability for the job, while giving the employee the opportunity to get to know the workplace. Both the employer as well as the employee may terminate the employment agreement with immediate effect provided that the probationary period did not expire.

Validity probationary period clause

A probationary period must be agreed upon in writing. For instance, in an employment agreement or collective labour agreement that is applicable to the employment agreement.
The maximum duration of a probationary period depends on the length and type of employment agreement:

No probationary period clause may be agreed upon when the employment agreement is entered into for a period of six months or a shorter period.
If an employment agreement is successive to another employment agreement, no probationary period may be agreed on, unless it is a different position that requires different skills or responsibilities from the employee. Also, no probationary period may be agreed on if the employer qualifies as a successor employer.

Dismissal 

A legally valid probationary period clause allows an employer to terminate the employment agreement with immediate effect in principle both during and before the start date of the employment agreement, as long as the probationary period did not expire. This can be done without involvement of the court or UWV. A ‘reasonable ground for dismissal’ as is usually the case is not required. Therefore, it is not necessary to provide an employee with the reason for the dismissal unless the employee asks for it. Moreover, the employer does not have to comply with any redeployment obligations or applicable notice periods. In addition, a probationary dismissal can also be given if the employee is ill, unless the illness is the reason for the probationary dismissal. A probationary dismissal may not be discriminatory or in violation of the principle of ‘good employership’ (goed werkgeverschap). In other words, the employer must not abuse its authority to dismiss an employee during the probationary period.

Questions?

Do you have any questions about probationary periods? Please contact Jaouad Seghrouchni, attorney at law in Employment Law, Employee Participation and Pensions.

The run-up to the end of employment can be a complicated period for both employers and employees. Apart from the various matters that need to be arranged, such as transferring responsibilities and dealing with financial arrangements, the question can arise as to whether the employee retains access to business e-mail accounts for the remainder of his or her employment. In particular, I often hear employer clients from the UK or USA say that – after indicating to the employee that they no longer wish to continue working with him or her – they send the employee in question on garden leave and immediately deny (block) access to electronic systems. This seems to be a matter of course in those countries. In the Netherlands, however, it is not.

District Court

In a recent ruling (Amsterdam District Court 21 June 2023, ECLI:NL:RBAMS:2023:3835), the subdistrict court ruled that an employer was obliged to make available the contents of the business e-mail accounts of a dismissed director and former founder.

After termination of employment, the employee requested access to her business e-mail accounts. She stressed the importance of both private information and business contacts she had built up over time. However, the employer unilaterally blocked access to the e-mail accounts. According to the subdistrict court, however, no reasoning circumstances were put forward to justify the conclusion that the employee had used the accounts improperly or unlawfully. According to the subdistrict court, it is hard to see why the mere termination of the employment should mean that the employee no longer has access to information from the past.

The employee explained why she has an interest in accessing the information on her e-mail accounts. In addition to private information, the accounts contain valuable business contacts, whose contact details and information are still of interest to her. The court recognised these interests and ruled that the employee was entitled to the past information.

An important aspect of the case is the confidentiality clause included in the employment contract.  This clause obliges the employee not to misuse or disclose confidential information. The court held that this clause provides the employer with sufficiently effective tools to act against unwanted use of the e-mail accounts by the employee.

Lessons learned

This court ruling shows once again that employers cannot simply deny access to email accounts to an employee who is about to leave employment. Even if the employee is already out of service, they can apparently – with the right arguments – still claim access to past emails. It is good to handle this carefully.

Questions?

Questions on this subject? Feel free to contact us!

Caroline Mehlem, Employment lawyer

Recently, Dutch Minister of Social Affairs and Employment, Van Gennip, announced to reform the non-compete clause. The aim of such reform is to prevent unnecessary use of the non-compete clause limiting the labour mobility.

The proposed amendments

In that respect a draft bill will be prepared in which the following is included:

  1. Limitation of a non-compete clause in duration.
  2. The non-compete clause must be geographically defined, specific and justified in the employment contract.
  3. The employer must motivate the compelling business reasons for entering into a non-compete clause. This obligation currently only applies for employment agreements for a definite period of time but will then also apply when entering into an employment contract for an indefinite period of time.
  4. When holding an employee to a non-compete clause, the employer is in principle required to pay a compensation to the relevant employee. The amount of this compensation will be legally determined and based on a percentage of the last-earned salary.

Minister van Gennip will submit the proposal for internet consultation by the end of 2023. Van Gennip’s letter (in Dutch) regarding the aforementioned can be found here

Questions?

Do you have questions about the non-compete clause in your employment contracts? Get in touch with Jaouad Seghrouchni, Attorney at law in Employment Law, Employee Participation and Pensions.

There are many discussions regarding flexwork. Whether it concerns (false)self-employment, on-call workers, entering into fixed-term employment agreements and hiring temporary workers. Also at political level flexwork is on the agenda. In that regard the Dutch government contemplates, amongst others, to forbid zero-hours contracts, to limit the possibility of entering into fixed-term employment agreements and to include a legal presumption of an employment agreement in certain cases.

How can I hire my staff in a flexible manner if it is not certain how much work there will be? How do I correctly use the interim termination clause in a fixed-term employment contract? And what to take into account as an HR professional in case of flexwork?

During this webinar, Jaouad Seghrouchni, Employment lawyer and specialist on flexwork at De Clercq Advocaten Notariaat – will consider the (legal) aspects of flexwork and provide practical tips and recommendations.

The following matters will be covered:

After this webinar you will be up to date on the (im)possibilities with respect to flexwork.

Will you also join this webinar? Participation is for free. You can register here.

Questions about flexwork? Feel free to reach out to Jaouad Seghrouchni, attorney at law, Employment, Employee Representation & Pension.

In our practice, we see that employers increasingly receive reports of transgressive behaviour. Employers are more than ever aware of the seriousness of this and also of their responsibility for a safe and healthy working environment, which also follows from legislation.

Some employers tend to act in “panic” when receiving a report of transgressive behaviour. We understand that as an employer you want to act quickly, but from a Dutch employment law perspective it is at least as important to also act carefully. What you need to avoid is damaging the reputation of the employee being accused without having investigated the report, which can make it basically impossible for the relevant employee to return to the workplace. Even if the report is subsequently found to be false.

What steps should an employer take when receiving a report of transgressive behaviour?

Step 1 Enter into a conversation with the reporter and the employee being accused

Once receiving a report of transgressive behaviour, the first thing to do is to start the conversation. This should be done with both the reporter and the person being accused separately. Enter this conversation openly (without judgement) and do not act too hastily. We recommend to have these conversations with two people, e.g. an HR manager and the superior, and put the conversation in writing. This can serve as evidence in case of a procedure.

Step 2 Advise the reporter to talk to, for example, a confidential advisor

It is also important to advise the reporter to request a meeting with – for example – a confidential advisor, company doctor or victim support. Ask the reporter what he/she needs. For example, perhaps the employee does not want to work for a while.

Step 3 Investigate the report(s) carefully

It is essential to thoroughly investigate the report. Make sure you do not act hastily, for example, by firing the accused employee immediately or by sending out an internal message to colleagues that the accused employee is temporarily suspended because of a report of transgressive behaviour. The investigation may be conducted by a complaints committee or – for example – by a specialised external investigation agency. When doing so, it is important to formulate the investigation assignment well and concretely. It is possible to agree with the accused employee (if necessary) that he/she will be exempted from work during the investigation.

Step 4 Take appropriate measures

Once the investigation has been conducted, the employer must take measures. Which measures are appropriate, depends of course on the circumstances. For instance, a coaching programme, transfer to another location and – in the worst case – dismissal with immediate effect.

Finally, it is relevant to always keep the reporter and the employee being accused informed of the steps being taken. It is unacceptable for an employee to read in the media that there is an investigation being conducted regarding him or her, without being informed by the employer beforehand. In short: act carefully!

Questions?

Questions concerning transgressive behaviour in the workplace? Feel free to contact Renée Huijsmans or Jaouad Seghrouchni, Attorneys-at-law at our Employment, Employee Participation & Pensions department.

Read also:

Preventing Transgressive Behaviour in the Workplace: A Practical step-by-step plan!

Employee participation is a constitutional right in the Netherlands. When a company employs 50 or more people, the employer (the entrepreneur) is obliged to establish a Works Council (WC).

The rights and obligations of the WC are governed in the Works Council Act (WCA). The purpose of the WCA is twofold. On the one hand, to stimulate employee participation in the decision and policy making process of the organization and, on the other hand, to provide important information to the entrepreneur/management from the workplace. Compliance with WCA rights and good and constructive communication between the WC and management ensures that employees’ interests are taken into account in the decision-making process. This can also create broad employee support for management decisions.

In this blog, we briefly explain the right of advice of the WC.

Right of Advice (Article 25 WCA)

If the entrepreneur wants to take certain (important) decisions of a financial-economical or organizational nature, the entrepreneur should first request advice from the WC.

The entrepreneur must request the advice of the WC on any intended decision with regard to:

  1. Transfer of control of the company or any part thereof;
  2. The establishment, take-over or relinquishment of control of another company, or entering into, making a major modification to or severing a continuing collaboration with another company, including the entering into, effecting of major changes to or severing of an important financial holding on account of or for the benefit of such an company;
  3. Termination of operations of the company or a significant part thereof;
  4. Any significant reduction, expansion or other change in the company’s activities;
  5. Major changes to the organisation or to the distribution of powers within the company;
  6. Any change in the location of the company’s operations;
  7. Recruitment or borrowing of labour on a group basis;
  8. Making major investments on behalf of the company;
  9. Taking out major loans for the company;
  10. Granting substantial credit to or giving security for substantial debts of another entrepreneur, unless this is normal practice and part of the activities of the company;
  11. The introduction or alteration of an important technological provision;
  12. Taking an important measure regarding the management of the natural environment by the company, including the taking or changing of policy-related, organisational or administrative measures relating to the natural environment;
  13. Adopting a provision relating to the bearing of the risk mentioned in Article 40, paragraph (1) of the Social Insurance Funding Act;
  14. Commissioning an expert from outside the company to advise on any of the matters referred to above and formulating his terms of reference.

The entrepreneur must request the advice of the WC in writing at a time when it can still have a substantial influence on the decision. The entrepreneur must also explain the reasons for the proposed decision, the expected consequences of the proposed decision regarding the employees and the proposed measures to deal with these consequences. The proposed decision must be discussed at least once in a consultation meeting and the WC must respond to the request for advice in writing. After the WC’s response, the entrepreneur must communicate his formal decision to the WC. If the entrepreneur’s final decision differs from the WC’s advice, or if facts and circumstances have become known that would have led to a different WC’s advice, the WC may appeal the decision. The appeal must be filed with the Company Section of the Court of Appeal (Ondernemingskamer) in Amsterdam within one month after the WC has been notified of the decision.

Exercise your rights!

Particularly in international companies, employee participation rights under the WCA are not always respected, despite the fact that employee participation is a constitutional right in the Netherlands. We therefore advise (internationally-oriented) WC’s to ensure that their rights are respected. After all, this is in the interest of both the employees and the company itself.

Guus Wife

Attorney at law

Employment, Employee Participation & Pensions

In our blog from earlier this year, we discussed in detail the Act implementation EU-directive on transparent and predictable working conditions (Wet implementatie EU-richtlijn transparante en voorspelbare arbeidsvoorwaarden) and the related obligations. In the meantime, this Act has been in force for a month. Now that the summer holidays have come to an end for most of you, it is good to reflect on the most important obligations and what you should do as an employer as a result of this Act.

The new Act

Among others, the new Act (i) requires the employer to provide more information to the employee, (ii) obliges the employer to offer studies or trainings without charging the employee and (iii) limits the employer in enforcing an agreed ancillary activities clause.

Extending the information to be provided

The following information must be provided in writing to the employee in (or accompanied with) employment contracts entered on or after 1 August 2022:

Study costs clause not always valid

The main rule is that a study costs clause, pursuant to which an employee should repay study costs under certain circumstances, may not be agreed upon for studies/courses that must be provided for under Dutch legislation or under a collective bargaining agreement. This does not include the obligation of an employee to follow certain studies or training courses in order to obtain, maintain or renew a professional qualification (such as a doctor). In addition, in this case the employee must be given the opportunity to follow the study or training during working hours (as far as ‘reasonably’ possible).

Restriction on invoking an ancillary activities clause

An employer may only hold an employee to an agreed ancillary activities clause if the employer has an ‘objective justification’ for doing so. This could be for example health and safety, protecting the confidentiality of business information or avoiding conflicts of interest.

Questions?

Would you like to know more about these changes or do you need to have your employment contract amended in accordance with the recent law changes? Please contact Jaouad Seghrouchni, attorney-at-law at our Employment, Employee Participation and Pensions department.

Violations of integrity in the workplace have come to the attention of many organisations due to the recent developments in the Dutch talent show The Voice. With good reason! It is the employer’s responsibility to ensure that everyone can work in a place where no (sexual) transgressive behaviour occurs. In this blog you will find a practical step-by-step plan for preventing transgressive behaviour in the workplace. In addition, you can read what to do if a report of transgressive behaviour is made.

Transgressive behaviour

What is transgressive behaviour? Behaviour is transgressive when the behaviour of one person crosses the boundary of the other. It is therefore very different for each person when certain behaviour is considered as transgressive. This is what makes it so complicated for employers.

There are several forms of transgressive behaviour:

Transgressive behaviour can be caused by people within the organisation (such as colleagues and supervisors), but also by third parties (clients, customers, patients). This can happen, for example, in healthcare, where patients may fall in love with employees, etc. A recent example we saw in practice concerns an employee at a penitentiary who was hit with a chair by a prisoner, breaking his wrist in several places.

Duty of care of the employer

As an employer, you have a duty of care for your employees. This means that you have to provide a safe and healthy working environment. Transgressive behaviour can be classified as psychosocial workload. As an employer, you are obliged to implement policies aimed at preventing or limiting psychosocial workload (and therefore also transgressive behaviour). In addition, you must also map out the risks related to transgressive behaviour by means of a Risk Inventory and Evaluation (RI&E).

Step-by-step plan

Below is a practical step-by-step plan to prevent transgressive behaviour in the workplace as much as possible.

  1. Establish core values, in which equality in the sense of respect for all employees is paramount. Work on a culture that stems from these values and let these core values be reflected in the policy that is drawn up.
  2. Establish policies that prevent/limit transgressive behaviour. Explicitly mention transgressive behaviour in the RI&E. Also make sure that this policy is understandable for your employees and think about how you communicate this policy to your employees.
  3. Set clear sanctions in the policy in the case of violation, so that the policy can be enforced. These could include suspension, an official warning or (in serious cases) instant dismissal. Both the policy and the sanctions must be communicated explicitly and sanctions must actually be applied in case of transgressive behaviour.
  4. Draw up a code of conduct and a complaints procedure as part of the policy. How do we behave in the workplace? And to whom can an employee apply in case of (sexually) transgressive behaviour?
  5. Appoint an easily accessible and preferably external confidential advisor and a complaints committee. In order to safeguard the independence of a complaints committee, the bill ‘Verplichtstelling vertrouwenspersoon ongewenst gedrag op de werkvloer’ regulates that the complaints committee must also include external members from outside the organisation. This bill is still under discussion in the Lower House.
  6. Do you have fifty or more employees in your organisation? Then you are also obliged to introduce a whistleblower regulation.
  7. Are employees within your organisation represented by a works council? If so, involve the works council in drawing up the policy in time. After all, it also has the right to consent with regard to the social policy.

What should you do when you observe transgressive behaviour?

In practice, we see that employers have difficulty in taking the right steps and measures when transgressive behaviour is observed. This may lead to for example the payment of a fair compensation of EUR 200,000 to an employee. It is therefore important that you know what to do in case of transgressive behaviour being observed within your organisation. For this reason, we have also drawn up a step-by-step plan.

  1. Have a conversation with both the reporter and the accused. Have this conversation with two people (for instance HR and manager) and put this conversation in writing.
  2. Advise the notifier to request a meeting with the confidential counsellor/company doctor/victim support, depending on the seriousness of the report. Ask carefully what the reporter needs.
  3. Then investigate the report or have an investigation carried out by a complaints commission or an investigation bureau. If necessary, put the defendant out of action during this investigation.
  4. Depending on the outcome of the investigation, take appropriate measures, such as suspension or transfer to another location. Consider all the circumstances.

Questions?

Do you have questions concerning transgressive behaviour in the workplace? Feel free to contact Renée Huijsmans or Jaouad Seghrouchni, Attorneys-at-law at our Employment, Employee Participation & Pensions department.

Given the fact that employees are well protected from a Dutch employment law perspective an agreement being qualified as an employment agreement will have legal implications. You may think of payment during illness, minimum wages, holiday allowance and protection against dismissal. Whether parties intended to enter into an employment agreement is not relevant for the question if their agreement qualifies as an employment agreement!

Definition employment agreement

Under Dutch law an employment agreement is defined as an agreement under which one of the parties (the employee) obliges him- or herself towards the other party (the employer) to perform work for a certain period of time. This work is performed in service of the other party and in exchange for payment (article 7:610 Dutch Civil Code).Especially the following conditions are relevant for the qualification of an employment agreement: ‘work’, ‘wages’ and ‘authority’ (in service).

Once it has been determined what parties agreed upon in terms of rights and obligations (the explanation phase), it must be assessed if these rights and obligations meet the definition of an employment agreement (the qualification phase).

The qualification phase

In the qualification phase it is determined if the determined rights and obligations meet the definition of an employment agreement. Whether parties intended to enter into an employment agreement is not relevant for the qualification. This means that clauses such as ‘Parties did not wish to enter into an employment agreement’ or ‘This agreement qualifies as a services agreement’ will not be helpful to prevent the agreement of being qualified as an employment agreement. Instead, the actual performance of the agreement by the parties is important.

When determining if parties entered into an employment agreement not one circumstance is decisive. The different rights and obligations that parties entered into should be assessed in relation to each other.

Labour

Labour concerns the work that is performed, which can be mentally of physically. Labour could be active or passive. Sleep shifts may also fall under the definition of labour.

Wages

Wages concern the payment the worker receives for the labour that is performed. Tips do not fall under this definition.

Authority

Whether there is ‘authority’ leads to most of the discussions as this distinguishes the employment agreement from other agreements pursuant to which work is performed, such as the services agreement.

An important characteristic of authority is that the employee performs his or her work in service of the employer or according to the instructions of the employer. The employer should have the possibility to further specify the work task. It is not required that the employer makes use of such authority. The following circumstances could be relevant for the presence of authority:

The foregoing means that even if parties thought to be entered into for instance a services agreement, their relationship could afterwards still be qualified as an employment agreement. This will have legal implications given the fact that in such case the person performing the work (the employee), will be entitled to minimum wags, holiday allowance, holidays, salary during sickness and dismissal protection.

(European) legislation

Legal presumption employment agreement 

On 9 December 2021 the European Commission published a proposal for a directive on improving working conditions in platform work. The proposal includes, amongst others, a legal presumption with respect to platform work(article 4). Under the legal presumption it is assumed that parties entered into an employment agreement if at least two of the circumstances as included in the proposal are met, such as the platform determining the level of remuneration, the platform restricting the freedom to accept or to refuse tasks or the platform limiting the possibility for the worker to work for third parties. Once the European Parliament and the Council of the EU accepted this proposal, member states should implement the directive within two years.

Webmodule

The Dutch government intents to implement a so-called ‘webmodule’, which includes online questions that companies could fill in before hiring freelancers. The goal is to give more certainty of whether a certain assignment can be performed without having an employment agreement. After the questions are answered there are three possible outcomes: i) the service may be conducted outside of an employment relationship, ii) no judgment can be given or iii) indication that there is an employment relationship. The webmodule can be found here. Given the fact that the webmodule is currently in pilot no rights can be derived from the outcome.

Practice

If parties do not intend to enter into an employment agreement it would be advisable to agree on rights and obligations that are not typical to an employment agreement and to make sure that there is no authority over the person that will be performing the work. Including that parties do not intent to enter into an employment agreement is not relevant.

Would you like to know more about the qualification of an employment agreement or do you have any questions about the aforementioned?

Feel free to contact Jaouad Seghrouchni, attorney-at-law at our Employment, Employee Participation & Pensions department and is specialized in flexible employment relationships.

 

For some time now, working from home has been the motto to keep the number of Covid-19 infections under control as much as possible. In view of the recent sharp increase in the number of infections, it looks as if more and more workers – where possible – will be working from home during the coming dark period of the year. Unfortunately, the end of this unpleasant period is not yet in sight. All the more reason, as an employer, to pay attention to the medical and legal risks of this ‘new normal’ for the time being.

Employer’s duty of care

In any case, it is clear that the employer has a duty of care in relation to the workplace of his employees. This follows from Section 7:658 of the Dutch Civil Code, which states that the employer must take such measures and give instructions for the performance of work as are reasonably necessary to prevent the employee from suffering damage in the performance of his duties. This duty of care is further implemented by the regulations in the field of working conditions. Exactly which measures can be required of the employer, however, depends on the circumstances of the case. There is therefore no absolute guarantee of worker protection.

According to the working conditions legislation, when employees work from home, this is ‘place-independent work’. This is subject to an alleviated working conditions regime: for example, the employer does not have to comply with obligations relating to fire hazards and escape routes. This concerns matters which would not be reasonable to require the employer to check or offer at the employee’s home.

However, especially now that it looks as if the situation will last considerably longer, the employer must provide an ergonomically designed home workplace. This may mean that the employer must provide employees with an ergonomic chair or desk. If that would not be reasonable (for example, because it concerns a very large group of employees), it would be sufficient for the employer to give clear instructions about the ergonomic design of the workplace (with attention to, for example, working posture and good lighting). This can be checked by the employer or occupational health and safety expert on the spot, but often – especially in the present day and age – photographs or video, or a checklist to be completed by the employee himself, are sufficient to check whether the home workplace is in order.

In addition, the employer should pay due attention to (and preferably have policy on) limiting the so-called psychosocial consequences of working from home. We all read in the reports that there is a considerable increase in stress, depressive complaints and a tendency to overwork because employees (have to) work from home and their interpersonal contacts are limited. This will only increase in the coming dark times. This is, of course, difficult for the employer to detect remotely. It is therefore important to have regular contact with the employees in order to keep an eye on the workload and other circumstances. In certain cases, it may be advisable to have an employee contact the company doctor as a preventive measure.

RI&E

In any case, it is now very important for employers to take stock of the risks of working from home. What work is being done from home? By how many employees? How do they work? What do the employees need to be able to work properly? What are the risks in the work? Think of overexertion problems, insomnia, back problems, RSI, etc. Include these risks in the Risk Inventory and Evaluation (RI&E). The Working Conditions Act not only requires that employers have an RI&E, but also that it is up to date. The SZW Inspectorate also checks whether employers regularly update the RI&E and whether it is complete. A new risk requires new measures in the plan of action. This is aimed at preventing the risks as much as possible and limiting the consequences.

In addition, the Works Council and the working conditions policy go hand in hand. It is therefore very important to involve the Works Council in such adjustments. After all, the Works Council has the right of consent when it comes to drawing up, amending or withdrawing the RI&E and the plan of action.

In any case: in order to avoid getting into liability discussions, it is advisable for all employers to pay attention in the RI&E to the home workplace. If employers fail to do so, both parties run a risk: the employee on health complaints and the employer on employee claims for damages. Especially in these difficult times for everyone, no one wishes to be confronted with additional complications.

Questions on this subject? Feel free to contact us.

Caroline Mehlem, Employment lawyer