Successive terms of employment: which norm is applicable?
Before 1 July 2015 successive terms of employment were assessed on the bases of whether the ties between the old employer and the new employer were to such an extent, that the insight the old employer had into the suitability of the employee could - in reasonableness - be attributed to the new employer. After 1 July 2015, terms of employment may be regarded as being successive regardless of whether the new employer has insight into the capacity and suitability of the employee. The question now is what criterion applies to changes of employer that took place before 1 July 2015. The Supreme Court has decided that possible cases of successive terms of employment from before 1 July 2015 must be assessed on the basis of the old criteria, called "het bandencriterium" in Dutch. This applies both to the assessment of successive terms of employment within the framework of the chain of contract rule (in Dutch: ketenregeling) as to the calculation of (years of service) for the transition payment.
Holiday rights of contractors that might requalify as employee can, under certain circumstances, accumulate indefinitely
The Court of Justice of the EU ('CJEU') has ruled that the holiday rights of a bogus self-employed accumulate indefinitely if the bogus self-employed was unable to exercise his holiday rights because his employer refused to pay wages for those days' holiday. The background to this ruling is that the CJEU is of the opinion that the employer who doesn't give an employee the opportunity to exercise his holiday (inclusive continued payment of salary) must bear the consequences. In previous rulings the CJEU has ruled that the employer can be protected by national legislation against unlimited accumulation of holiday rights of an employee who is incapacitated for work. N.B. The situation in this ruling differs from previous rulings by the CJEU regarding the accumulation of holiday rights.
Are payroll employees entitled to the same benefits?
Payrolling can - amongst others - provide flexibility and offer administrative advantages for an employer. Recently, three Dutch political parties (PvdA, SP and Groenlinks) have submitted a legislative proposal regarding payrolling. This legislative proposal aims to provide payroll employees the same terms and conditions as their colleagues who work directly for the client. The legislative proposal intends to avoid improper competition regarding employment terms and conditions. It concerns individual, collective, primary and secondary terms and conditions.
Moreover, the legislative proposal aims to end that the more flexible labour regime (which applies to temporary workers and payroll workers) is applicable in case of a payroll situation. In particular, special provisions such as the extension of the chain of contract rule, the exclusion of continued payment in case of illness and the temporary employment clause ex art. 7:691 lid 2 BW would, in the case of this legislative proposal, no longer apply to payroll employees). If the legislative proposal will be accepted, parties can adjust the current agreements within a half year.
Reasonable compensation after the New Hairstyle case
In the New Hairstyle case, the Supreme Court has listed seven viewpoints which a court could take into account when determining the amount of reasonable compensation (in Dutch: “Billijke vergoeding”). In response to this an analysis of 18 court casesafter the New Hairstyle judgement was made . From this analysis it follows that the courts follow the New Hairstyle judgement and that in each judgement two viewpoints from the New Hairstyle case return when the court determines the amount of reasonable compensation: (i) the income forfeited by the employee and (ii) any transition compensation payable by the employer or compensation for dismissal without observing the prescribed notice period.In addition to this, in more than half of the rulings the court takes the (reasonable) income into account which the employee will earn in the future.The conclusion seems to be that with the New Hairstyle case a beginning of an unambiguous calculation method for the reasonable compensation is made.
The settlement of a lease car contract
In a recent ruling of the district court of Midden-Nederland, the court ruled that an employer must observe the interests of an employee with the settlement of a lease car agreement in the event of a premature termination of an employment agreement. In this case, the employer had determined that, after the employee had terminated her employment agreement, another employee could take over the lease car agreement against a lower addition for the private use of a company car ("Tax Addition"). The employer claimed the difference between the “old” Tax Addition and the amount the other employee would pay in the future. The court dismissed the claim since the employee was not a contracting party of the lease company and therefore had no negotiating position. In addition to this, the solution chosen by the employer was not discussed with the employee in advance, but presented as a fait accompli and then unilaterally carried out by the employer. The employer should have taken the interests of the departing employee into account and should not have unilaterally pass on the difference of the Tax Addition on the departing employee.