Category: Employer

Employment law, title 10 of book 7 from Civil Lawbook, apply when between parties there is question of an employment contract. Often, to protect economic “weaker” employees, most of the by us employment law included provisions, ¾ of this is forced law. These are provisions that are (almost) impossible to be deviated from in agreements. The question about whether or not you can speak of a employment agreement is important to set the rights and obligations in de agreement for all of the involved parties.

What does the law tell us?

In article 7:610 part 1 Civil Lawbook a employment agreement is defined.

“The employment agreement is a agreement where one party, the employee, binds to be employed of the other party, the employer, for wage during a certain period of labor.”

From this definition appears three elements you can separate from each other, namely:

1. The obligation to provide (personal) work;
2. The obligation to pay wages; and
3. To be employed of the other party (authority)

Are these elements present, then you can speak of an employment arrangement and the provision of employment law is applied to the agreement. This seems reasonably simple, but it’s not always that easy to see if there is an employment agreement. The question about how an agreement should be qualified, is frequently presented to a judge. Also in a recent arrest of the Supreme Court.

Jurisprudence

One of the most important arrests of the Supreme Court (Groen / Schoevers, HR November 14th 1977, NJ 1998/149) where is explained when you can talk about an employment agreement is from the year 1997. In this arrest, the Supreme Court considered, for as long as it’s relevant, the following:

“For the question whether or not a legal relationship should be qualified as a employment agreement, or as a contract for services, there is decided what parties had in mind when signing the agreement, partly taken into account is the way they gave a factual performance to the agreement and therefore then gave their own meaning to it. ”

After this arrest, there was attached considerable importance to the intentions of both parties. Do parties intentionally have started an employment agreement? Currently in practice, mostly the stronger employer is the one who decides this, in this arrest this was seen as erosion of the agreement.

Even after 1997, the Supreme Court multiple times has commented on about the question when a agreement can be qualified as an employment agreement. The arrest from 1997 stayed as the base. In a recent arrest the Supreme Court actually considered that the meaning that was awarded, wasn’t right.

ECLI:NL:HR:2020:1746

In its arrest from November 6th 2020, the Supreme Court has made a clear difference between the two phases, namely:

Phase 1: the content of an agreement; and
Phase 2: the qualification of an agreement

The Supreme Court clarifies that in the first phase the rights and obligations should be determined by explanation. The question about which rights and obligations are determined by the parties must be answered on the basis of the Haviltex criterion. This Haviltex-criterion is – shorty viewed – looked at the purpose which parties could assign and at what is reasonable to expect from each other.

In the second phase must be looked at if the determined content of an agreement meets the meaning of the artikel 7:610 BW. Does the agreement meets this requirement, then the agreement is being designated as a employment agreement. Different than expected based on arrest of the Supreme Court from 1997, in this it isn’t relevant if parties also really meant to include the agreement under the statutory regulation of an employer agreement.

Regarding the arrest from 1997, the Supreme Court considered the following:

“Different from what is derived from the arrest Groen / Schoevers, the meaning of parties doesn’t play a part in the question if an agreement is designated as an employment agreement.”

Conclusion

The question about whether or not an agreement is designated as an employment agreement is relevant to see if the agreed rights and obligations meets the legal description of the employment agreement. In other words, after the agreed rights and obligations are determined (explanation), the agreement can be rated to see if it is has characteristics of an employment agreement (qualification). If parties meant to conclude an employment agreement is, other than expected, not important for the question if an agreement should be designated as an employment agreement.

Evidence can be obtained unlawfully for various reasons.
In many cases, employment law concerns evidence that has been obtained in a way that compromises privacy. This could include secretly recording or having an employee followed.

Illegal obtained evidence

In a specific case, whether evidence has been unlawfully obtained will be assessed on the basis of all the circumstances of the case (Supreme Court July 11th 2014, ECLI:NL:HR:2014:1632). But what is the consequence if it were to be ruled in an employment law procedure that evidence was unlawfully obtained? Can this evidence still be relied upon or will it have to be ignored by the judge?

Article 152 RV stipulates that evidence can be provided by any means and that the appreciation of the evidence is left to the judge’s discretion, unless the law provides otherwise. The fact that evidence has been obtained unlawfully does not automatically mean that the judge should not pay attention to this evidence and that this evidence must be excluded.

The general social interest in having the truth come to light in legal proceedings and the interest that parties have in being able to prove their statements in legal proceedings outweighs the interest in excluding evidence. Only if there are additional circumstances is it justified, according to established case law, to exclude evidence (Supreme Court April 18th 2014, ECLI:NL:HR:2014:942).

The foregoing will be different in other legal areas, such as criminal law.

Amsterdam Subdistrict Court ruling June 18th, 2020

The question of whether there is unlawfully obtained evidence and, if so, whether this would mean that this evidence should be disregarded in an employment law procedure, was recently addressed in a ruling by the Amsterdam District Court came. In the case in question, an employee had been summarily dismissed. To prove the compelling reason presented by the employer – in short, reporting sick contrary to the truth, which seriously damaged the employer’s trust – the employer brought into the dispute the employee’s WhatsApp conversations with, among others, her boyfriend.

During her work, the employee used a colleague’s laptop shortly before her dismissal. The employee has installed a WhatsApp application on this laptop. Apparently the employee was not aware that WhatsApp messages later exchanged via her phone were also visible on the laptop. At some point the employee reported sick. During the employee’s absence, another employee started using the laptop. WhatsApp conversations of the employee who was later summarily dismissed were also revealed.

The WhatsApp conversations showed that the employee was not sick at all. For example, in one of the WhatsApp conversations, the employee writes that she does not know how long she can use the flu to stay at home and in another conversation she indicates that she is thinking well.

The subdistrict court judge considers that it is clear that the employer has taken note of extremely privacy-sensitive information, which the employee did not want her employer to see. However, according to the subdistrict court judge, the employee himself contributed to this by installing the WhatsApp application on the (work) laptop. According to the employer, the employee’s account was not “hacked” to access the information, but the laptop could be used via a simple password.

The subdistrict court judge goes further by considering that, if it were to be ruled that the evidence was obtained unlawfully, this does not mean, according to established case law, that the judge may not take this into account. In general, the social interest in having the truth come to light in legal proceedings and the interest that parties have in being able to prove their statements in legal proceedings outweighs the interest in excluding evidence. The foregoing is only different if there are additional circumstances. The subdistrict court judge indicates that in the present case it has neither been stated nor proven that this is the case. The subdistrict court judge therefore simply takes the evidence into account and rules that there is a legally valid summary dismissal.

This contribution focuses on the question of what happens to the vacation days that are left after the year in which they were accrued.
In order to properly answer the previous question, the accrual of vacation days will first be discussed below. The question will then be discussed whether, and if so under what circumstances, accrued but not taken vacation days can be paid out in money. Finally, the forfeiture of the entitlement to unused vacation days will be discussed.

Accrual of holiday days/h2>
An employee is in principle entitled to at least four times the agreed working hours per week in holiday days. For full-time employment, this amounts to at least 20 vacation days per year.

The minimum number of days that an employee is entitled to vacation are called the statutory vacation days. Of course, an employer and employee may agree that an employee has more vacation days. The days that exceed the minimum are called extra-statutory holidays.

Payment of holiday entitlements

During employment

In principle, an employee cannot waive his entitlement to holiday days during the term of his employment. Not even for payment. An exception to this concerns extra-statutory vacation days. Entitlement to these days can be waived in writing in return for compensation.

At the end of the employment contract

If an employee is still entitled to vacation at the end of the employment contract,

Much has been written in the literature about the question of what exactly should be paid out. In this context, the next newsletter will consider the question of how much a day of vacation is worth.

In view of the foregoing, employees can only renounce accrued, but not taken, vacation days during their employment to a limited extent. This means there is a risk that employees will have accrued a whole reservoir of unused vacation days at the end of their employment.

Expiry of vacation days

A measure that limits the build-up of such a reservoir is that unused vacation days will expire at a certain point.

Statutory vacation days/h3>
The entitlement to statutory vacation days expires in principle six months after the last day of the year in which they were accrued. This means that an employee must have used up the statutory vacation days before July 1 each year.

The aim of applying this expiration period is to encourage the employee to take holiday.

However, the expiration period of six months only applies if the employee has been reasonably able to take the days off. If this is not the case, these days will not expire after six months, but only after five years.

Extra-statutory holiday days

The entitlement to extra-statutory holiday days expires after five years.

In principle, deviations from the rules described in this newsletter can only be made to the benefit of the employee.

Article 7:611 of the Dutch Civil Code stipulates that the employer and the employee are obliged to behave as a good employer and a good employee.
The article contains a vague standard. The use of such a standard ensures that there is room for legal development and that the article can function as a so-called safety net provision. The foregoing is important as the legislator cannot possibly foresee all situations or include them in regulations. For this reason, this article is also called the most important provision of labor law.

Good employment practices in particular seem to play a role in (almost) all employment law procedures. Aspects that play a role in being a good employer include the principle of equality, the principle of motivation, the principle of trust and the principle of care.

Although good employeeship should in principle be regarded as the mirror image of good employership, it does not appear to be as strict for employees as good employership is for the employer. The reason for this is the fact that the employee is much more dependent on the employer than the employer is on the employee. However, the employee must ensure that he behaves as a good employee. If he does not do so, this may have consequences such as receiving a warning, suspension or even dismissal.

Good employer practices

Rb. Rotterdam September 5th, 2017
That Article 7:611 of the Dutch Civil Code plays an important role in labor law, partly due to its safety net function, is evident from, among other things, the decision of the subdistrict court in Rotterdam of September 5th, 2017.

The employee in this case requested re-employment after a complaint submitted by the employer request for dissolution was rejected.

Although there is no general rule that entitles an employee to re-employment, this can under certain circumstances be successfully claimed on the grounds of good employment practices. In the relevant decision, the subdistrict court judge considered that the question of whether there is a right to re-employment on the basis of good employment practices depends on the circumstances of the case, such as the nature of the employment relationship, the nature of the agreed work and other circumstances.

The subdistrict court judge further considered that an employer must not only have good reasons to be able to suspend an employee, but also to be able to keep him or her on layoff. Since the existence of such reasons had not emerged in the present proceedings, the subdistrict court granted the re-employment claimed on the basis of good employment practices.

Good employee behavior

Good employee behavior plays an important role in, among other things, the question of whether the employee can be required to accept a change to the agreement.

In such a case, good employeeship means that an employee must generally respond positively to reasonable proposals from the employer in connection with changed circumstances at work, and may only reject such a proposal if its acceptance is reasonable. cannot be expected of him.

The changes that employers may be able to make in this way may relate to various aspects of the employment contract, such as:

• Changing the location of the company, which increases the employee’s travel time (significantly);
• Shifting working hours, as well as;
• Implementing a job change or even a demotion.

Whether acceptance cannot reasonably be expected of an employee depends on the circumstances of the case. This means that what can reasonably be expected of one employee may not be expected of another employee.