Obligation to extend a Dutch employment contract in special circumstances?
A Dutch fixed-term employment contract means that the contract ends by operation of law. In principle, there is no obligation in Dutch employment law on the employer to extend the contract. At most, there may be an obligation to extend the contract in special circumstances. In this article, our Amsterdam employment law attorney Paul Snijders explains what these ‘special circumstances’ may be.
Right to extend a fixed-term contract in The Netherlands: prospect of a permanent contract
One of the ‘special circumstances’ referred to in case law is when it is established that an employee, if he performs well, has been given the prospect of a permanent contract. This must be laid down in the employment contract. The judge does give a ‘but’ here, because it is and remains up to the employer to assess whether he considers the employee suitable for the job. The obligation does not apply if the employee, despite the promise, is not suitable for the job.
Suppose your employer considers you unsuitable for the job, but you have received the promise, can you successfully go to court?
Of course, it always depends on the circumstances. The judge must accept the employer’s freedom of choice. He may therefore only look at whether your employer’s choice, not to renew the employment contract, was taken reasonably.
What if you have become incapacitated or ill and the Dutch employer does not want to renew?
Of course, it may be the case that you have become incapacitated for work and you have come to suspect that this is the reason for your employer’s non-renewal of your employment contract. The court indicates that in such a case you must state the reasons why the incapacity for work is the reason for the non-renewal. As indicated above, it is the employer’s right not to extend an employment contract. The employee must then state the reasons why the employer has used his right incorrectly, and that the employer has discriminated, for example, because of pregnancy or a chronic illness.
What about possible compensation for non-renewal of a temporary contract?
According to our labor law specialists, this chance is very small. By not extending an employment contract, an employer can usually not be seriously blamed, nor does he act in violation of his good employment practices, the grounds for possible compensation.
Discrimination in the event of pregnancy or chronic illness in The Netherlands
As mentioned above, this may be different in cases of discrimination, for example in the case of pregnancy or chronic illness. The court may well look at the employer’s decision differently in these types of cases. For example, the court ruled that the non-renewal of an employment contract was also related to the employee’s pregnancy.
After all, if she were not pregnant, she would still have time to improve her malfunctioning. According to the court, in cases like this it can be proven that the employer acted seriously culpable, which can lead to compensation.
It must then be established:
- That the employer did not renew for that medical reason, and;
- That there was discrimination on the grounds of handicap or chronic illness.
What is a chronic illness or disability in Dutch employment law?
Please note that not every illness qualifies. It must be an impairment resulting in particular from:
- Long-term physical, mental or psychological condition;
- That prevent you from participating in working life on an equal footing with other employees.
What does this mean for you according to our Amsterdam employment attorney?
If your temporary contract has not been extended and you suspect that this is because you have become (partially) unfit for work, you will therefore be able to present sufficient facts and circumstances to raise the suspicion that the employer did not extend the employment contract solely because of a ‘chronic illness or disability’. The threshold for the latter is high, however.
Questions about illness or the right to extend a temporary contract?
Should you, as an employer or employee, have any questions about illness or extending a contract as a result of this article? Or do you have another question about employment law? Please feel free to contact our Dutch employment law attorney in Amsterdam.