The remainder will not be implemented until 1 July 2015. As these measures may affect your practice or work, we will below outline some changes in flexible employment legislation, which have entered into force already. Flexible employment legislation concerns the position of employees with temporary employment agreements. A large number of adjustments aims at reducing the difference in the positions of temporary employees and those of employees with permanent agreements. Below we will list the major changes that affect the drafting and termination of the employment agreement. These changes are relevant both to employers and employees.
Probationary Period Provision
The probationary period is intended for employers to gain insight into the suitability of employees for the stipulated work. Employees can explore the company and their duties during the probationary period. If either party has no confidence in the employment relationship, that party may terminate the agreement in the probationary period without stating reasons. Since 1 January 2015 the rules have been tightened and laid down in Section 7:652 Dutch Civil Code. Employment agreements (made on or after 1 January 2015) may no longer provide for probationary periods of six months or less. Such provisions will be null and void. This is mandatory law and cannot be deviated from by collective bargaining agreement. Fixed-term employment agreements for less than two years are subject to one-month probationary periods. For fixed-term employment agreements longer than two years a probationary period of two months applies. This regulation allows for variations by collective bargaining agreement. The legislator thus wants to encourage employers to weigh the pros and cons of long-term agreements with probationary periods of the one part and fixed-term agreements without probationary periods of the other. The other grounds for revocation of the probationary period clause are listed in subsection 8 of Section 7:652 Civil Code.
Non-Competition Clause
Since the legislative change it is no longer allowed to include non-competition clauses in temporary employment agreements unless necessary for compelling business or service interests. Moreover, the clauses are valid if the legislator provide written grounds showing the need for the clause because of compelling business or service interests. The grounds should be stated at the same time when the clause is agreed and may thus be given when employees leave. This has been laid down in Section 7:653 Civil Code.
The Explanatory Notes on the legislative proposal show that the legislator has opted for this intensified test to avoid double disadvantage for employees. The fixed term agreement is regarded as a disadvantage as are the limited job opportunities after expiry of the contract.
Notification Period and Notification Penalty
Under the new Section 7:668 Civil Code employers are required to state in writing within one month before expiry of temporary employment agreements (with a minimum of six months) whether the agreement will be renewed after expiry (and on what terms) or will end by operation of law. The objective of this term is to give employees time to explore the job market and thus reduce unemployment. If employers fail to comply with their duties, they will owe employees one monthly salary maximum. In the event of late compliance with their duties, employers must pay employees pro rata compensation. Employers will not owe any compensation if declared bankrupt, or if they have been granted suspension of payments or if they take part in a statutory debt management scheme for natural persons.
If you have any questions or would like to know more, please feel free to contact one of the lawyers of Slangen Advocaten.
Eveline Speich
info@slangen-advocaten.nl
10 March 2015
