Terms of employment are usually set out in an individual or collective employment contract or in separate terms and conditions of employment. That a term of employment can also however come into existence over time was confirmed in a recent judgment of the Midden-Nederland District Court.

Facts

The employee had been employed since 2002. The applicable collective bargaining agreement (CAO) regulated that items provided on loan should be returned when the employee no longer needed them or when the employer requested their return.

When the employee fell ill in early March 2018, the employer asked for the return of the company car. The employer argued that (i) the return of the car was necessary due to the takeover of another courier company and (ii) the employee no longer needed the car to carry out his duties since he was ill at home.

The employee refused and argued that the car had become a term of employment because he had been using the company car, for both business and private purposes, for sixteen years. The employer had the car collected at night and blocked the fuel card. The employee argued that by doing so the employer had unilaterally amended his terms of employment. He claimed damages in interim relief proceedings for the unlawful collection of the car.

Term of employment due to long-term use

Given that the employee had been using the car and fuel card for both business and private purposes since the start of his employment, their long-term use was established. The fact that this was not explicitly included in the employment contract or CAO does not alter the fact that these items can become terms of employment. The interim relief judge concurred with a recent judgment of the Dutch Supreme Court in which it ruled that the answer to the question of whether a term of employment had come into existence turns on “the meaning the parties conferred on one another’s actions (and related statements) and could reasonably confer on them in the given circumstances”. The Supreme Court thereby formulated six relevant points:

  1. the course of action taken;
  2. the nature of the employment contract and the mutual position taken by the employer and employee vis-à-vis one another;
  3. the length of the period during which the employer followed the course of action;
  4. the statements that the employer and employee have or have not made to one another in connection with the course of action;
  5. the nature of the pros and cons that arise from the course of action for the employer and the employee;
  6. the nature and scope of the group of employees for whom that course of action was followed.

In view of these points the interim relief judge found that the company car had become a term of employment and the employee did not have to expect to have return it – immediately and simply at the employer’s request. This could have been different if the employer had attached conditions to the use.

Unilateral amendment?

The interim relief judge then answered the question of whether the employer was entitled to amend this term of employment unilaterally by compelling the employee to return the car.

Given that the employment contract did not include a unilateral amendment clause the employer was in principle not entitled to do so. It has however been ruled in the case law that there are circumstances under which an employee may nonetheless be expected to cooperate in amending his employment contract. Whether an employee has to respond positively to such an amendment proposal depends on three questions:

  1. Are there new circumstances that necessitate the amendment of the employment contract?
  2. Is the amendment proposal reasonable in light of the circumstances of the case?
  3. Can the employee reasonably be required to accept the proposal?

According to the interim relief judge the arguments stated by the employer for the return of the company car did not constitute a reason for the unilateral amendment the employer wanted. The fact was that the employee was not permanently or fully incapacitated for work. Added to that, the employee was apparently going to start his reintegration at any time. The employee moreover used his car for private purposes, during the time he was ill as well.

Conclusion

Business property such as a car, telephone or laptop can become terms of employment over time, especially if private use is permitted. Where no unilateral amendment clause has been agreed, it is difficult to seize such items. It is therefore important to properly set out the exact nature of the provision of the business property and under which circumstances the employee has to return it.