Tag Archive for: Employment

The redeployment condition: what can be expected from your employer?

An employment agreement can, in principle, only be terminated if the following conditions have been met:

  1. There is one of the reasonable grounds for dismissal provided for by law;
  2. Redeployment of the employee to another suitable position within the company is not possible.

If the employer has not met both of these conditions, the employment contract can cannot be terminated without the employee’s consent.

In this article, I will focus on the second condition: the redeployment condition. The redeployment obligation means that the employer must make an effort to place the employee in another position within the company. Because it is not clear from the law what an employer must do in the context of the redeployment obligation, I clarify this in this article.

An active approach

An employer is expected to take an active attitude. The employer must really make an effort to try to redeploy the employee. Pointing out open vacancies within the company to the employee is insufficient to meet the redeployment obligation.

If there is a vacancy open for a suitable position, the employer must act proactively. This means that the employer must invite the employee for a job interview or offer the position straight away. An employer must be able to provide justification if it rejects the employee for a position suitable for the employee.

Personal approach

An employer is also expected to adapt its approach to the employee. This may mean, that the employer has personal discussions with the employee and removes possible barriers.

In certain cases, the employer may also be expected to offer training to make a position suitable. Again, the employer is expected to take an active and leading role. The employer must enrol the employee in courses or training. Merely offering training opportunities is insufficient to meet the redeployment obligation.

Companywide redeployment

If the employer is part of an international group, the employer must look into the possibility of redeploying the employee to another entity of the company. The employer will need to engage in conversation to discuss the possibility of redeployment to another global location.

Suitable position

The employer must try to place the employee in a suitable position. Case law shows us that a position is considered suitable if it matches knowledge, experience and education.

Please note that if an employer has made sufficient efforts to redeploy the employee, it has fulfilled its obligation in this regard. If there is reasonable ground for dismissal, the employee’s refusal of a suitable position may therefore result in the employer being able to successfully terminate the employment contract.

Conclusion

As the above shows, much is expected of an employer under the redeployment requirement. What specifically can be expected from an employer in fulfilling the redeployment obligation will have to be assessed on a case-by-case basis.

Please contact us if you have any questions about the redeployment condition. We would be happy to advise you about what can be expected from your employer and whether you can reject a suitable role.

Changes to Dutch employment law: some things to watch out for

Dutch employment law is constantly changing. 2024 is no different with several interesting pieces of legislation are in the pipeline. Seliz Demirci from GMW Lawyers has the lowdown on the changes to Dutch employment law.

Given the caretaker status of the government it is unclear if this draft legislation will become law. And if so, when it will come into effect. Nevertheless, these are the changes to employment legislation you may be faced with in 2024 and 2025.

1 Changing rules to prevent sham self-employment.

In March 2023, the Supreme Court ruled that delivery drivers working for Deliveroo should not be regarded as self-employed workers, but as employees. This means they are entitled to the protection and benefits enjoyed by employees. Such as minimum wage, holiday pay, sick pay and protection against dismissal.

This piece of legislation aims to combat this type of sham self-employment by, among other things, bringing in a presumption that there is an employment contract, with employees earning below € 32.24 an hour.

The legislation is due to come into effect on the first of July 2025, but may be amended before then. The potential practical implications are significant for both employers and freelancers, from employment law and tax point of view.

2 Changes to the sick leave system in the second year of illness

This proposal is aimed at small and medium-sized businesses. Under the current rules, when an employee becomes ill, the employer is required to continue paying at least 70% of the salary for 104 weeks.

During this period, the employer is expected to do what is possible to reintegrate the employee into suitable work. The focus here is on having the employee return to his own job with the same employer. This is called the first track.

In addition, the employer (usually from the second year of illness) can also explore  reintegration with another employer. This is called the second track. Both tracks should run in parallel.

The proposed new law gives small and medium-sized businesses the right to focus exclusively on the second track. I.e. external instead of internal reintegration from the start of the second year of illness. The employee must agree to this.

If this law is passed, employers will no longer have to keep the employee’s position open from the second year of illness. And their position may be filled by someone else. That being said, the employer must continue to pay wages until the 104th week of illness. They also have to continue to make efforts to reintegrate the employee with another employer.

3 Better job security for flexible workers

The current law allows employers to offer workers call-out or zero hours contracts. The employee only works the hours they are called in to cover and does not get paid if they are not called to work. The government aims to strengthen the position of on-call and temporary agency workers by abolishing zero hours contracts.

Rules covering multiple short term contracts are also being amended. At the moment, the employee should be given a permanent contract after three years or after three consecutive temporary contracts with the same employer. If this does not happen, the employer can wait six months and then hire the same person again on a temporary contract.

If the legislation is passed, the six-month interval will be increased to five years, making it more difficult for employers to repeatedly hire an employee on a temporary basis.

4 Mandating a confidential advisor for staff

In 2023, parliament passed a bill requiring employers to appoint a confidential counsellor as part of efforts to reduce bullying and other undesirable behaviour in the workplace. This shouls help create a safe working environment for all employees. This legislation regulates the basic tasks involved and strengthens the legal status of the confidential counsellor in the private sector and other organisations.

Small companies with fewer than 10 employees are exempt from the requirement for the time being.

5 Amending the non-competition clause

Under current law, employers are legally allowed to impose a non-compete clause with a broad scope. The government wants to tighten and reform the legislation relating to non-competition clauses to make it easier for employees to move on in the labour market.

Among other things, the non-competition clause will be legally limited in duration and geographical scope. Employers must also justify the compelling business interest underlying a non-competition clause in permanent employment contracts, and departing employees must also be paid compensation if they comply with the non-competition clause.

These plans are currently being developed into a bill and will be submitted for consultation before being sent to the lower house of parliament. As yet it is unclear when the new law will come into effect.

More information

Should you encounter any problems with your employment contract, redundancy and a competition clause, feel free to contact us. We will be happy to assist you.

Top tips: Dutch employment contract 2022

So you’ve been offered a new job in the Netherlands in 2022. The position sounds good, the terms sound reasonable, and you’re excited to accept. Now you need to check the contract before you sign it. The only challenge is that you may not know much about Dutch employment law – making it tough to understand what each clause means for your rights.

Expat employment law expert Godelijn Boonman of GMW lawyers shares her tips for assessing and understanding a new employment agreement.

 

Know your contract type, know your rights

The first thing you need to ascertain is whether you are entering a contract for a fixed period (temporary) or for an indefinite term (permanent). This determines which rules will apply to your employment – and therefore determines your rights.

If your contract has an end date, it is a temporary contract. The maximum length of a temporary contract is generally 3 years.

 

Start well: probation period

If your contract includes a probation period (trial period), then you or your new employer can terminate the employment during the trial period without giving any reason. A probation period must be agreed in writing.

Temporary contracts of less than 6 months may not include a probation period. Temporary contracts for longer than 6 months may include a probation period of maximum 1 month. Indefinite contracts may include a probation period of maximum 2 months.

 

In between: conditions and changes

Your contract, together with any applicable general terms and conditions or Collective Labour Agreement, stipulates the conditions under which you agree to work. This includes key information such as the location of your workplace, your salary, hours, job title and the payment schedule.

In the Netherlands, you also want to check for:

Annual leave – full-time employees must receive a minimum of 20 vacation days per year, excluding national holidays.

Vakantiegeld – 8% of your annual salary is reserved as “holiday money”. This amount may be paid annually or otherwise – but it should always be mentioned.

Unilateral changes clause – if your employment terms contain a unilateral changes clause, then your employer can change the conditions of your employment without your prior consent. As this may include topics such as changing the location of your workplace, or a company requirement for corona vaccination, it is very relevant. Do note that an employer can not easily do this. Even though the contract has this clause, the employer needs to meet strict conditions before it can unilaterally change your contract.

 

End well: notice, termination and transition

Notice periods – unless otherwise agreed, an employee’s notice period is 1 calendar month. If you have been an employee for less than 5 years, then your employer’s standard notice period will also be 1 month. Note that you can agree upon different notice periods, but the employer’s notice period must be double that of the employee’s and a maximum of 6 months.

Termination – Temporary employment contracts terminate on the date they end. In the case of an indefinite contract, you can only terminate it: by the employee resigning, through a mutual termination agreement, via a UWV/court dismissal, or by summary dismissal (fired on the spot).

Restraint of trade – If your employment agreement includes non-competition, business relation or partner relation clauses, try to negotiate these upfront; they could limit your future options.

Transition – if your employer wants to terminate the employment, then they will need to pay you a transitional allowance. This comprises 1/3 of your monthly salary per year of employment.

 

GMW lawyers – experts in expat employment law

If you need help assessing your new employment agreement, contact our team of English-speaking employment lawyers for assistance. Call us 070 361 5048 or submit your question online.

 

 

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