Suppose you have been working via a temporary employment contract, and you have a few fixed-term contracts behind you. You like it so much that the company that hired you would like to hire you. You start signing. So what should you look out for?
The first question then is whether the contract with the new employer will count with the previous contracts you had with the employment agency (or other employer). For example, if you later claim an open-ended contract, or want severance pay based on years of service. What matters here is how long you were actually employed by all employers. This legal regulation is called ‘the chain rule’.
Chain rule: after 3 contracts or 3 years: permanent contract
It follows from the law that from the day that fixed-term employment contracts have succeeded each other and together have exceeded a period of 36 months, the last employment contract is deemed to have been entered into for an indefinite period of time. In short, you already have an open-ended contract if you have signed 3 or more temporary contracts consecutively with the same employer in 3 years; and the break (interval) between contracts is a maximum of 6 months.
Initiative to join a new employer
But then you are not there yet. First, the initiative to perform the same work with a new employer must come from the employer. So you really have to be asked to come and work there.
Virtually similar work as at temporary employment agency
In that case, it must also be similar work at the previous employer. This is stated in Section 7:668a of the Dutch Civil Code. Therefore, there should not be too big differences in competences or working conditions.
In a ruling, it was considered in this regard:
>The other differences mentioned by B&J (r.o. 5.13) are also insufficient to assume that there is no question of successive employership. It has neither been stated nor shown that these differences in powers/working conditions entail substantially different skills and responsibilities.
Based on the above, the subdistrict court held that B&J could reasonably be regarded as a successive employer. As a result, the employment contract that [employee] entered into with the temporary employment agency counts in the series of temporary employment contracts and the employment contract entered into with effect from 13 November 2019 is the fourth employment contract in that series. Pursuant to Section 7:668a (2) jo. subsection 1 (b) of Book 7 of the Dutch Civil Code, this last employment contract is therefore to be regarded as an employment contract for an indefinite period of time, which was not validly terminated by B&J’s notice.
Differences are therefore allowed, but not too many; for example, different work or a higher pay scale with different skills and responsibilities. In this case, the court did find that all agreements may be added together because the differences were not too great.
Permanent contract after 3 years or 4th contract
That meant in this case, that by now there was an open-ended contract after the transfer. The fact that the employer terminated that last temporary contract on the agreed end date meant that the employee could rely on dismissal protection: in this case, the employer was only allowed to dismiss after receiving permission from the UWV or through the courts, unless the employee agreed to dismiss with the help of a lawyer, such as through a settlement agreement. However, this was not the case and the dismissal was annulled by the court.
Both employers and employees should therefore pay close attention when an employee joins a company for which the employee previously performed work.
Contact employment lawyer Amsterdam about dismissal in a temporary job
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