Dutch Employment Law: Exciting and Complicated

On 1 August 2022, the EU Directive on transparent and predictable working conditions (the EU Directive) was implemented, changing Dutch employment law.

The aim of this directive is to give employees more security and more predictable working conditions. These employment law changes, however, have far-reaching consequences for various employment conditions and clauses.

It is of great importance that employers understand what their new mandatory obligations are (note that for most, no transitional law applies!) and that they have their standard contracts adjusted accordingly.

An example of a new legal provision resulting from the implementation of the EU Directive is the training obligation.

As of 1 August 2022, employers are obliged to provide training to their employees to better execute the work for which they have been hired. The training shall be offered free of charge to the employee, the training time shall be regarded as working time and, if possible, it shall be offered during the hours in which the work is to be done.

Since training that is required by law must always be offered free of charge, previously concluded contracts with a study-costs clause are null and void with immediate effect. No transitional law applies.

Before the EU Directive was implemented, many Dutch employers used the study-costs clause to distinguish themselves from other employers and thus attract new and promising employees, offering them rather expensive training they would not be able to afford or willing to pay for themselves. Now that this is no longer possible in most cases, employers will have to think of something else that will make them more attractive to highly sought-after employees.

As per 1 August 2022, employees are legally allowed to have several jobs at the same time. An ancillary employment clause is therefore null and void unless the clause can be justified on the basis of an objective reason.

A justification based on an objective reason for the application of a prohibition on ancillary activities may be included in the employment contract itself, but may also be given afterwards. For example, at the time the employer wants to invoke an ancillary employment clause.

There is no transitional law for this. This means that previously agreed restrictions in an ancillary clause of a current employment contract do not restrict the employee from performing various activities in addition to their present job.

Certainly, we recommend including a clause stating that the employee must inform the employer of any ancillary activities they perform or wish to perform.

Existing terms remain valid to the extent that they do not have to contain the justification itself, but when they are invoked, it must be clear what the objective reason consists of. Think carefully about what reason this should be and whether this reason can be objectively justified

Another hot topic at the moment is the gig economy and the rights of platform workers. This issue continues to keep employment law specialists busy.

The recent Opinion of the Advocate General (AG) of the Dutch Supreme Court explains a pressing employment issue, namely whether platform workers are employees or not. The Opinion an exciting 100-page read is based on the Deliveroo case. 

According to the AG, the answer revolves around the interpretation of the criterion in the service of the other party the authority criterion. Hence whether the work is organisationally embedded in the company of the provider (the platform).

When determining whether the work is organisationally embedded in the company of the provider, the actual performance of the work should be the main focus. This is in line with the case law of the Court of Justice of the European Union and has major implications for the gig economy if not properly addressed. The many court cases currently in progress around Europe persuasively demonstrate the complexity of the issue.

I recently had the privilege to hold a webinar on current employment issues and discus with a number of major international employers the difficulties they face when attracting and keeping employees. The main topics were:

The conclusions drawn from this webinar were:

In this short article, I can only briefly touch on what is currently hot and trending in the Dutch labour market and also relevant for you as an employer. If you have any questions, I will be happy to answer them.