Background information on applicants

Background checks

Are there any restrictions or prohibitions against background checks on applicants? Does it make a difference if an employer conducts its own checks or hires a third party?

From an employment law perspective, background checks are permitted. However, data protection laws (in particular GPDR) place certain restrictions on the nature and amount of data that can be used. As a general rule, only such data may be collected that are necessary for the position to be filled (principle of proportionality).

In principle, it makes no difference whether an employer conducts its own checks or hires a third party. Should an employer make use of a third party, a data processing agreement in accordance with the General Data Protection Regulation (GDPR) has to be concluded.

Medical examinations

Are there any restrictions or prohibitions against requiring a medical examination as a condition of employment?

Medical examinations as a condition of employment are only permissible if and insofar physical fitness is necessary for the employment in question (eg, for employees operating heavy machinery). In such a scenario, it could be valid to refuse to hire an employee who does not submit to an examination. However, in ‘regular’ jobs medical examinations cannot be demanded from employees.

Drug and alcohol testing

Are there any restrictions or prohibitions against drug and alcohol testing of applicants?

Drug and alcohol testing during the application process will, in general, infringe the privacy of the applicant and is only permitted in special cases (eg, for pilots). Unless the employer discriminates against the applicant for other reasons, he or she may refuse to hire an applicant not submitting to an examination in such special cases.

Hiring of employees

Preference and discrimination

Are there any legal requirements to give preference in hiring to, or not to discriminate against, particular people or groups of people?

Employers with at least 25 employees are required to employ a disabled person (degree of disability of at least 50 per cent) per each 25 employees. Non-compliance with that requirement requires the employer to pay compensation. This is calculated as a certain sum (currently €271–€404 a month), multiplied by the number of disabled persons that should have been employed.

Must there be a written employment contract? If yes, what essential terms are required to be evidenced in writing?

There are no specific statutory requirements regarding the form of a contract of employment, except for the employment of apprentices and some employees of the public sector. Therefore, an employment contract may be either in writing or oral. However, according to the Employment Law Harmonisation Act the employer is required to give the employee a written statement after the beginning of the employment if there is no written contract. This written statement (a Dienstzettel) must summarise the essential terms of the employment agreement, such as the name and address of the parties, the beginning date, the period of employment, the salary, the usually working place, the working time, the entitlement of vacation per year, the termination terms, the applicable collective bargaining agreement (if any) and the severance payment fund.

To what extent are fixed-term employment contracts permissible?

There are no restrictions of the extent of fixed-term employment contracts in terms of duration. Fixed-term employment contracts can be terminated before the expiration of the contract either by mutual agreement or for important reasons. Termination of the contract without cause is only possible if it was explicitly agreed between the parties, whereas the notice period must be in an adequate relation to the length of the contract.

It can, however, be invalid to link several fixed-term contracts together, in particular if there is no objective reason to do so. In this case, an employment relationship of indefinite duration is constituted.

Probationary period

What is the maximum probationary period permitted by law?

The probationary period can only be established at the beginning of the employment and may only last one month, during which time both parties can terminate the contract immediately without notice. This period may not be extended at the discretion of the employer.

Classification as contractor or employee

What are the primary factors that distinguish an independent contractor from an employee?

The most important distinction is that an independent contractor is not subject to instructions with regard to when and where he or she has to perform his or her works. Furthermore, an independent contractor is not obliged to perform the work personally, is not integrated into the corporate organisation, and uses his or her own resources.

Temporary agency staffing

Is there any legislation governing temporary staffing through recruitment agencies?

The Act on Personnel Lease governs temporary staffing. In particular, it stipulates several obligations of the (temporary) employer (eg, regarding employee safety or equal treatment with permanent staff) and the information rights of the leased employees.