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?

Background checks can be done by employers in the Netherlands but are strictly regulated by the EU General Data Protection Regulation. The employer must have a legitimate reason for the check, the check must be necessary, and the employee must be informed properly before and after the check. The results of the check may only be saved for the period necessary for the purpose of the screening.

With regard to certain functions, an employer can ask the applicant to request a certificate of good behaviour at the Ministry for Security and Justice, which declares that the applicant has not committed criminal offences that are relevant for the performance of the work.

Background checks can be outsourced to third parties, but the applicant must be informed about this.

Medical examinations

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

The Medical Examinations Act states that medical examinations may only be done for jobs for which it is necessary that the applicant meets certain medical standards. The Act prohibits asking candidates about their health during recruitment. Those questions may only be asked at the end of the application process, during a pre-appointment screening when the employer intends to hire the applicant. The examination must be limited to its purpose.

The vacancy must mention the need for a medical examination. The employer may refuse to hire an applicant who refuses a necessary examination or when the results of the examination do not meet the necessary standards.

Drug and alcohol testing

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

Alcohol and drug testing is prohibited unless there is an explicit statutory basis for the test, which is the case for some jobs, such as pilots, skippers and train drivers. If a test is necessary for the job, it could be part of a necessary medical pre-appointment examination.

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?

Discrimination in employment is prohibited. This also applies to the recruitment process, which means that the text for vacancies may not include discriminatory requirements. Dutch labour law does not contain mandated preferences in hiring. However, the parliament recently agreed to a binding 30 per cent quota for women in the supervisory board of market-listed Dutch companies. Whether the government will implement the quota in legislation is not yet clear.

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

Employment contracts can be agreed upon in writing or orally; however, an employer must inform the employee, written or electronically, within a month after the beginning of employment of the following information:

  • the name and residence of the parties;
  • the place of work;
  • the function of the employee or the nature of his or her work;
  • the start date of employment;
  • the duration of the contract (if fixed-term);
  • the amount of paid annual leave and how leave entitlement is calculated;
  • the notice period parties should take into account and the calculation thereof;
  • the salary and payment term and, if the salary depends on the outcome of the performed work, the amount of work that will be offered per day or week, the price per piece and the time that is reasonably needed for the performance of the work;
  • the usual daily or weekly working hours;
  • whether the employee will take part in a pension arrangement;
  • any collective agreement that applies;
  • whether the employment contract concerns temporary agency employment or payrolling;
  • whether the employment contract is for an indefinite term; and
  • whether the employment contract is an on-call contract.

 

If the employee will be working abroad for longer than one month, the employer must inform the employee of the duration, the housing abroad, the applicability of Dutch social security, the currency in which the employee will be paid, applicable compensations and the arrangement of the return of the employee.

Various agreements regarding the employment will only be valid when agreed upon in writing. This, for example, applies to probationary periods, non-competition and non-solicitation clauses.

To what extent are fixed-term employment contracts permissible?

There is a limitation on the use of fixed-term contracts, laid down in the ‘chain of contracts rule’: when more than three fixed-term contracts succeed each other or if the duration of successive contracts exceeds three years, the employment is deemed to be for an indefinite period. If the chain is interrupted by an interval of more than six months, a new chain of fixed-term contracts starts.

Probationary period

What is the maximum probationary period permitted by law?

Probationary periods must be equal for both parties, may only be included in contracts with a duration longer than six months and amount to:

  • one month for fixed-term contracts longer than six months but less than two years; or
  • two months for indefinite-term contracts and fixed-term contracts of two years or longer.

 

A longer probationary period can only be agreed upon in an applicable collective labour agreement.

Classification as contractor or employee

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

An employee works under the supervision of the employer. The employer can monitor and control the way the employee performs the work. Independent contractors do not work under supervision. Companies are only allowed to give limited instructions to the contractor. When the instructions exceed a certain level, the contractor may be working under supervision of the company and is ‘falsely self-employed’. In that case, the contractor can claim the existence of an employment contract and the benefits that come with employment.

Temporary agency staffing

Is there any legislation governing temporary staffing through recruitment agencies?

Book 7 of the Civil Code provides specific provisions for temporary agency work and payrolling. These provisions outline some regulations regarding the dismissal of these types of workers. However, the Act on Allocation of Workers through Intermediaries contains the most important provisions regarding temporary staff, hired through agencies. Companies’ collective labour agreements often also include provisions regarding hired staff. Temporary agency workers are also subject to the Collective Labour Agreement for Temporary Agency Workers.