Points of interests for employers as of August: requests for more predictable employment conditions

By now, employers have to consider the Dutch Law on Transparent and Predictable Employment Conditions. In addition to adjusting the employment contract to meet the information obligation, there are a number of issues that employers are now facing with immediate effect:

1. Ancillary activities clauses are only valid if the employer can give an objective reason for this. An objective reason can e.g. be protection of the confidentiality of company information or complying with working time legislation;
2. Study costs clauses are only of limited validity and enforceability. In short, mandatory training must be offered free of charge to the employee and, in addition, must be followed during the normal working times; and
3. As of now, employees can request a form of employment with more predictable and certain employment conditions. In the following paragraphs, we discuss the conditions for such a request and how the employer must respond.

 Conditions for the request

An employee can submit a request for more predictable and certain employment conditions if he/she is in employment for at least 26 weeks at the intended effective time of the adjustment to more predictable employment conditions. Such a request can be done once a year and must be submitted in writing to the employer.

Two categories of employees cannot submit such a request. These are:

• Employees who usually on less than four days a week provide services (almost) exclusively to the household of a natural person;
• Employees who work on the basis of a marine employment agreement or employment agreement in the marine fishing industry.

Content of the request

A request relates to more predictable and certain employment conditions. The minister of Social Affairs and Employment named as an example that an employee who is working on variable hours, can request a fixed number of working hours per week/month. The minister also noted that employees can request an employment contract for an indefinite period. The latter has not been further elaborated on and has been given little attention in the discussion of the draft bill. Whether in practice it will be possible, based on the new rules, to request adjustment of a fixed-term contract to an indefinite one, remains to be seen.

Decide on the request

An employer must respond to the request of the employee motivated and in writing. If you are an employer with:

1. 10 or more employees, you must decide on the request within 1 month;
2. less than 10 employees, you have 3 months to decide on the request.

Beware: if you do not decide on the request in a timely manner, the employment will be adjusted in accordance with the request of the employee. This can have far-reaching consequences, especially when it concerns a request for conversion of a contract to an indefinite one.

The law does not contain any further criteria with regard to the decision that the employer must make. You must motivate your decision in writing, but there are no further criteria for the motivation. There is no obligation to grant the request unless there are weighty business or service interests for not granting the request. It therefore in principle is up to the employer to give substance to the decision. In the explanatory memorandum to the law, the example is given that predictable employment must of course be available at the employer, in order to be able to grant a request for such employment.

Returning request

As explained above, an employee can submit a new request after one year. This applies regardless of whether the previous request was granted or denied. If you are an employer with:

1. 10 or more employees, you must again decide in writing on the request;
2. less than 10 employees, it concerns a similar request of the employee and the motivation regarding the earlier decision on the previous request remains unchanged, you can decide on the request orally.

Action points for employers

The period in which most employers must decide on the request is short, namely only one month. If the employer does not decide timely, the employment is adjusted in accordance with the employee’s request, with all the consequences that this entails. If you receive a request for more predictable employment conditions as an employer, respond motivated, timely and in writing.

Do not hesitate to contact us. We are happy to help.