Tag Archive for: Seliz Demirci

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.

Performance Improvement Plan: 5 key points to consider

Termination of the employment agreement due to unsatisfactory performance is possible under Dutch employment law. You can only be dismissed for unsatisfactory performance if your employer has given you sufficient opportunity to improve your performance. This is also known as a Performance Improvement Plan (“PIP”).

Below are 5 key points you need to know before starting a PIP.

Are you obliged to cooperate with a PIP?

In general, yes. An employer has the right to assess the performance of employees and provide instructions on how to do develop and improve. That being said, the employer must be able to demonstrate that improvement is required. Usually, one or more negative performance evaluations precede the start of a process of improvement.

What exactly does a PIP look like?

The law does not describe what a good improvement plan should look like, but from the many rulings of judges on this point, you can say that a proper PIP meets the following requirements:

    • The PIP must be in writing and so must the interim evaluations;
    • It must contain concrete and measurable improvement areas;
    • The improvement areas must also be realistic and achievable;
    • The employer should actively support the employee during the PIP. What this support entails varies from case to case and may consist of ‘training on the job’ but also of offering training or a course. Involving a coach or mentor is also not unusual;
    • The PIP should be evaluated periodically in between. It is then discussed what went well or not (yet) well in the past period.

What is the duration of a PIP?

The law does not specify what the duration of a PIP should be. In case law, improvement processes of 3 months to 1 year are considered acceptable. The important thing is that the PIP is at least long enough to allow the employee to actually improve.

The following factors play a role in the length of a PIP:

  • The content and level of the position;
  • The employee’s level of education;
  • The nature and degree of the underperformance;
  • The duration of the employment;
  • Previous efforts made to improve performance;
  • The extent to which the employee is open to criticism and willing to engage during the PIP.

What can you do if you disagree with the progress of the PIP?

Record this, for example with an e-mail message. Let your employer know in the interim that you do not agree with the way the PIP is going and why.

Can you be dismissed if the PIP is not successfully completed?

This is indeed possible. However, it must then be clear that your employer has given you a realistic and serious chance to improve. You can also expect that your employer has offered the necessary support to make the improvement process a success. Moreover, your employer is obliged to investigate whether you can be redeployed to another suitable position within the company.

More information

Do you want more information about a Performance Improvement Plan? Or do you have any other legal question? Then please contact us directly. Our expert are happy to help you.

The employer’s duty of care

An employer has a duty of care. For instance, the employer has an obligation to protect the safety and health of his employees. In order to prevent employees from suffering damage during the performance of their duties, the employer must take measures. These measures include implementing a policy and giving safety instructions to employees.

With the advent of the #MeToo movement and anti-discrimination measures, the home-working policy during the Covid-19 pandemic and the growth of long COVID patients infected in the workplace, attention to the employer’s duty of care has increased. Employers are even more expected to ensure a safe working environment and atmosphere to prevent employees from suffering damages during work.

Seliz Demirci, employment lawyer at GMW lawyers discusses the content and scope of the employer’s duty of care in light of current topics.

Legal basis

Employers must prevent employees from suffering damage in the performance of their duties. Therefore, Dutch law stipulates that an employer must take the necessary measures. The concept of damage includes both physical and psychological damage. Psychological damage is particularly relevant in the context of sexual harassment. Does an employer breaches his duty of care? Then it is up to the employee to prove the existence of damage. He also has to prove that this damage arose in the performance of their duties. Did proven damage occur? Then the employer needs to prove their liability. The employer’s liability lapses if they demonstrate that they have fulfilled their duty of care. Is the employer not able to prove that they have taken the required measures for a safe working environment? Then they are liable. The bar for liability is therefore low.

(Sexual) harassment and discrimination

The law does not set specific conditions for fulfilling the duty of care. Whether the employer has fulfilled their duty of care will be judged on a case-by-case basis. The prevention of (sexual) harassment and discrimination in the workplace is important. Therefore, an employer may in any case be expected to appoint an (external) confidential advisor. He might also need to provide a complaints procedure. Not only does this enable the employer to demonstrate that they have fulfilled their duty of care, but the parties involved also know how to deal with a complaint. In addition, taking these measures can have both a repressive and a preventive effect.

The employer has not automatically fulfilled their duty of care merely by drawing up a complaints procedure and appointing a confidential adviser; more is expected of them. For instance, an employer has the obligation to respond adequately and in a timely manner to a complaint regarding sexual harassment or discrimination. He must take a complaint seriously and investigate it properly.

Working from home

The duty of care also extends to the home workplace, although the employer’s obligations are then more limited than those that apply within an office or factory. The employer must ensure that the employee has an ergonomically equipped workplace. This means providing a good and large enough desk, an adjustable desk chair, a properly adjusted monitor and associated aids. ‘Taking care of’ does not mean that the employer must purchase everything (new) for the employee, if the employee already has an ergonomically well-equipped workplace. The point is that the employer must establish whether and to what extent the employee has a good workplace at home.

Preventing burn-out

The employer also has the obligation to implement a policy that prevents the pressure of work from becoming too high and the employee from suffering burnout. Limiting the workload is part of this. This obligation also applies – and perhaps even more so – when working from home. Therefore, as an employer, ensure regular (team) consultation about work pressure and provide information about monitoring the balance between work and private life. It is also important for employees to raise the alarm in good time with their employer when the work pressure becomes too high.

Liability

When an employer has not fulfilled their duty of care towards their employees, they can be held liable. If that liability is established, the employee may claim compensation for material and immaterial damage suffered. An employment lawyer can explain your rights, risks and obligations, allowing you to make the best possible decisions.

More information on the employer’s duty of care

If you need to take legal action, our team of employment law experts can help you to work it out. Call us on 070 361 5048 or contact us via our easy online form.