Below you will find frequently asked questions and answers in this FAQ Legal advice & contract management. If your question is not listed, please contact us.
A temporary employment contract may last up to 36 months and be renewed up to three times. If an employment contract has a longer duration, an employment contract for an indefinite period of time arises by operation of law after the 36-month period has been exceeded or after the third extension (the fourth contract).
Please note! The above does not apply when only one fixed-term contract is concluded, because it must concern successive contracts. It is also possible to deviate from the above rules by collective agreement.
A probationary period may be agreed. The probationary period must be laid down in writing and must be the same for both parties (employer and employee). In case of an employment contract for an indefinite period of time, a trial period of up to 2 months may be agreed upon. For employment contracts for a definite period, the following periods apply:
⢠For an employment contract of 6 months or less -> no trial period.
⢠For an employment contract longer than 6 months but less than 2 years -> probationary period of 1 month.
⢠In the case of an employment contract of 2 years or longer -> probationary period of up to 2 months.
Please note! The CAO may deviate from the maximum probationary period, but the probationary period may never be longer than 2 months.
When an employee reports sick according to the rules, the employer cannot refuse this. However, if the employer doubts whether the employee is really sick, the employer can call in the occupational health and safety service. The doctor of the occupational health and safety service will examine what is going on, whereupon the employee is obliged to provide the occupational health and safety service with information about everything that has to do with a possible continued payment of wages. The employer cannot demand that the employee and the occupational health and safety service inform him of the nature of the illness. Based on the expertise of the doctor of the health and safety service, it can be determined whether the employee is actually sick. An employer does not have this expertise and therefore the employer should not decide whether the employee is sick or not.
The employer must report sickness to the occupational health and safety service on the 4th day of absence at the latest. In addition, the employer must keep a sickness registration. If the employee is ill for longer than a week, the employer must take into account that in the case of long-term illness, a problem analysis must be drawn up by a company doctor within six weeks and an action plan must be submitted to the UWV within eight weeks of the first notification of illness. This plan of approach concerns a reintegration process, the employer must indicate what suitable work can be offered to the employee despite his illness. Next, the progress of the employee must be discussed every six weeks. In the 42nd week following the first day of illness, the UWV must be notified of absenteeism. Before a year has passed, the employer and employee must make an evaluation of the period of illness.
If the employer does not comply with his obligations, it can be said that the employer has made insufficient efforts to get the sick employee back on the shop floor. The sanction is to extend the regular obligation to continue paying wages (104 weeks, 70% of the salary) by one year. So instead of the regular 2 years of continued payment, this will be 3 years.
On the other hand, the employee who refuses to accept suitable work runs the risk of losing his/her entitlement to wages or being dismissed.
The employee must do everything possible to get better. For example, the employee must cooperate in drawing up an action plan, follow the reasonable instructions of an expert and accept suitable work.
It may happen that the company doctor declares an employee fully or partially fit for work, while the employee thinks differently. In that case, an employee can request an expert opinion from the UWV. An insurance doctor or an employment expert from the UWV will then assess whether or not you, as an employee, are unfit for work.
Does the UWV arrive at the same conclusion as the company doctor? Then the employee must resume work. If the employee refuses to perform work in spite of this, he runs the risk of having his salary withheld.
In principle, an employer is obliged to continue paying wages during illness for 104 weeks. But the employment contract does not stop after those 104 weeks. The employment contract can, if both parties agree, be terminated by means of a settlement agreement. If the employee does not agree, the employer may also apply for a dismissal permit. The UWV will only grant this permit if it has been demonstrated that, despite sufficient effort, there is no suitable work for the sick employee and, in addition, it has been established that there is no prospect of recovery within the next 26 weeks. In case of termination of the employment contract, the employer owes a transitional compensation, but this can be compensated by the UWV.
If the dismissal is the result of serious culpability on the part of the employer, the employee may be eligible for fair compensation. The legislator only wanted to make fair compensation possible in exceptional cases, so the standard for fair compensation is strict.
Of course, if both parties agree, an employment contract can always be terminated prematurely. It is different when only one of the parties wants to terminate the contract. Early termination of a temporary contract is only possible if the contract contains a termination clause in which both parties have the possibility to terminate prematurely. If you, as an employer, wish to terminate the contract prematurely, you will need permission from the UWV or the subdistrict court.
Please note! The probationary period is an exception to the above. During the trial period, both parties can terminate with immediate effect.
What about the employee?
If there is no clause of notice and the employee nevertheless gives notice and then does not come back to work, the rule applies: no work, no pay. In addition, under certain circumstances, the employer can claim compensation for lost work.
Please note! The probationary period is an exception to the above. During the trial period, both parties can terminate with immediate effect.
A non-competition clause prohibits an employee from entering the service of a competing employer. A non-solicitation clause prohibits the employee from working for relations of his former employer for a certain period of time.
Both clauses are similar in effect: they restrict the employee’s ability to work in a certain capacity after the end of the contract. Such a clause is valid if the employment contract has been entered into for an indefinite period of time and the employer has agreed this clause in writing with an employee who is of age. Such a clause may only be included in a fixed-term employment contract if the employer has provided sufficient written justification and it shows that the clause is necessary due to serious business or service interests.
If the employment contract is terminated by or on behalf of the employer, the employee is entitled to a transition payment.
In a number of cases, you are not entitled to a transition payment. For example, in the following cases:
⢠When the dismissal is the result of serious culpable actions or omissions.
⢠When you are younger than 18 and work a maximum of 12 hours.
⢠When you have reached the retirement age.
⢠In case of bankruptcy or suspension of payment of the employer.
⢠When your employer is in debt restructuring.
⢠When the agreement is terminated by mutual consent, a transition payment can be agreed upon, but this is not necessary.
The amount of the transitional compensation is equal to one third of the salary per month for every year the employment contract has lasted, and a proportional part of it for a period that the employment contract lasted less than one year.
⢠The transitional compensation is a maximum of âĴ 94,000, unless you earn more than âĴ 94,000. In that case, the compensation is at most one year’s salary.
There are many exceptions to the above. Would you like to know exactly what your transitional compensation will be? Then please contact our company lawyers.
If there is a difference between what the CAO says, and what the employment contract says, then the rules from the CAO apply. Please note that there are two ‘types’ of CAOs: ‘standard CAOs’ and ‘minimum CAOs’. In the case of standard collective agreements, it is not possible to deviate from the collective agreement. Minimum collective agreements allow for deviation, but only if this is to the employee’s advantage.
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