Employment Law
Langelaar Klinkhamer Advocaten’s employment law practice operates under the brand name Ko & Co Lawyers. Ko & Co Lawyers are our experts in employment law. So you will always be helped by a lawyer who is 100% at home in employment law and you will be provided with appropriate legal assistance. Labour law covers everything that can occur in the employer-employee relationship, before, during or at the end of the employment contract.
Do you have a question or just want to exchange views? That’s always possible! Call or mail us at:
At Ko & Co Lawyers, we always tailor our services to your needs. We see listening carefully to you and asking the right questions as the basis of finding the right solution to the problems in your specific situation. In recent years, Ko & Co Lawyers has assisted many employers and employees. You therefore choose to hire an employment lawyer who, in addition to his or her expertise, also has years of experience and a good sense of what you need in a particular situation.
Areas of expertise
Below are the areas in which we can advise and assist you, among others. We advise and litigate in all these areas. We can also help with all kinds of contracts such as employment contracts, assignment agreements or management agreements. For more detailed information on Ko & Co Lawyers, please take a look at its own website. Click to meet the team.
Employer and employee lay down in an employment contract the arrangements under which the employee will perform work for the employer. The content of the employment contract therefore largely depends on the parties’ agreements on it. Standard agreements on certain topics are made in the employment contract, for example on salary, holidays and working hours. However, the agreements made by the parties must comply with the mandatory employment law provisions. These provisions are designed to protect the employee, so they may not be deviated from to the employee’s detriment. If the parties do so, the provision is invalid.
A non-competition clause is an agreement between employer and employee according to which the employee is prohibited from working for a competitor of the employer for a certain period of time after the end of the employment contract. A non-competition clause serves to protect the employer’s interests, such as safeguarding company information and know-how.
A variant of the competition clause is the non-solicitation clause. A non-solicitation clause prohibits the employee from performing work for relations of the employer for a certain period of time after the end of the employment contract.
Section 7:653(1) of the BW sets out requirements that a non-competition clause must meet. The clause must have been agreed in writing between employer and (an adult) employee and the employment contract must have been entered into for an indefinite period of time. A non-competition clause in a fixed-term employment contract is null and void (not valid), unless the employer motivates in the employment contract that the clause is necessary because of serious business and service interests.
The employer and employee may agree that a certain (short) period at the beginning of the employment contract counts as a probationary period. The purpose of the probationary period is mutual acquaintance. This allows the employer to assess during the probationary period whether it considers the employee suitable for the position and whether the employee fits in with the organisation. The employee can investigate during the probationary period whether the job and the organisation meet his expectations. If either of the two has doubts about the cooperation, then either the employer or the employee can terminate the cooperation with immediate effect during the probationary period.
The inclusion of a probationary period clause in an employment contract is subject to a number of legal requirements. Because the purpose of the probationary period is to give parties time to get to know each other, a probationary period may, in principle, only be agreed between the parties when entering into the first employment contract. In addition, a probationary period clause must be agreed in writing and the probationary period must be the same for both parties. In a fixed-term employment contract entered into for six months or less, no probationary period can be agreed. If the fixed-term employment contract lasts longer than six months but shorter than two years, the probationary period may not exceed one month. If the employment contract is concluded for (more than) two years or for an indefinite period, a maximum probationary period of two months applies.
If the above requirements are not met, for instance because the agreed probationary period is longer than allowed, this leads to nullity of the entire probationary period clause. This means that the parties have not agreed on a probationary period in that case.
Dismissal occurs when the employment contract is terminated against the will of the other party.
An employee may terminate an employment contract for an indefinite period or a fixed-term contract that may be terminated prematurely. No further conditions are imposed on this, except that the employee must observe the notice period. A fixed-term employment contract in which the parties have not agreed that early termination is allowed cannot be terminated early.
More rules apply to an employer who wants to dismiss an employee with an employment contract of indefinite duration or an employment contract that can be terminated early. If the employee does not cooperate in his dismissal, the employer can ask the UWV for permission to terminate the employment contract with the employee or ask the subdistrict court to dissolve the employment contract with the employee in the event of one of the following grounds for dismissal:
- Job loss (business economic reason);
- Long-term incapacity for work (>24 months);
- Frequent absenteeism with unacceptable consequences for the employer;
- Dysfunction;
- Culpable acts or omissions of the employee;
- Refusal of work due to conscientious objection and adjustment not possible;
- Disrupted working relationship;
- Circumstances other than those mentioned above, which are such that continuation of the employment contract cannot be required of the employer.
- A combination of the aforementioned grounds.
For dismissal due to long-term disability or business economic reasons, a dismissal permit must be requested from the UWV. For all other reasons, the employer must ask the subdistrict court to dissolve the employment contract. If one of the grounds for dismissal is not met, the UWV will not grant a dismissal permit and the subdistrict court will not dissolve the contract. In that case, the employee remains in service.
In practice, parties often separate by means of a settlement agreement. Strictly speaking, there is then no dismissal, as both parties agree to the termination of the employment contract. However, often one of the parties takes the initiative to terminate the employment contract, in many cases it is the employer. The employee will only be willing to agree to the termination of his employment contract under certain conditions.
In a settlement agreement, the parties agree, among other things, when the employment contract will end and whether the employee will receive severance pay. After signing the settlement agreement, the employee has a 14-day reflection period. Within this reflection period, the employee may dissolve the settlement agreement without giving any reason, as a result of which the employment contract between the parties will continue to exist. After the reflection period, the settlement agreement can, in principle, no longer be affected.
The basic principle is that any employee who is dismissed is entitled to a transition allowance. Also entitled to a transition allowance is the employee whose fixed-term employment contract is not continued by the employer. In short, the transition compensation amounts to a sixth monthly salary per six months worked. There is also the possibility of an additional transition compensation in case of dissolution on the i-ground.
In exceptional cases, an employee can claim fair compensation in addition to the transitional compensation. The court can award the employee fair compensation if the employer is seriously culpable. However, this does not happen easily.
Companies are constantly on the move. For instance, they develop new products or dispose of old ones, technological developments require fewer employees for the same services or they move part of their production process abroad. The fluctuating economy also makes companies constantly on the move. To keep a company healthy, its organisation must be able to respond to such changing circumstances. This can be done through reorganisation. A reorganisation means a set of measures of an organisational and financial nature aimed at creating a healthy basis for the company to continue operating.
Often, a reorganisation also has major consequences for the staff because jobs are lost as a result of the reorganisation. In principle, an employer must first say goodbye to hired staff and employees working under a fixed-term employment contract in the event of a reorganisation. Should this be insufficient, the employer can apply to the UWV for a dismissal permit due to job losses.
Ko & Co Lawyers has particular expertise in and experience of employment law in education. This is relevant because the collective labour agreements in education are often very detailed and knowledge of their content is essential to be able to advise properly in employment law cases in education.
A collective bargaining agreement (“CBA”) is an agreement entered into between one or more employers (or associations of employers) and one or more associations of employees. The collective agreement serves to compensate for the weak bargaining position of the individual employee. A collective agreement mainly regulates terms and conditions of employment, e.g. wage levels, working conditions and working hours. A collective agreement can therefore be considered a supplementary regulation to the individual employment contract.
The collective agreement can apply to the individual employment contract in different ways:
- bond by membership of one of the parties to the collective agreement;
- incorporation clause;
- collective agreement declared generally binding (AVV);
If the employer is affiliated to the CAO-concluding employers’ organisation and the employee is affiliated to the CAO-concluding employees’ organisation or trade union, the parties are bound by the CAO. However, it is important for the applicability of the collective agreement that the parties fall within its scope. The scope means to which company or companies and to which employees the collective agreement applies. Every collective agreement includes a provision describing the scope of the collective agreement.
A collective agreement also applies if the employer and employee have agreed so in the individual employment contract and ‘incorporate’ the collective agreement. If an incorporation clause is included in the employment contract, both parties are obliged to comply with the rights and obligations under the collective agreement.
A collective agreement can also be declared generally binding by the Minister of Social Affairs and Employment (SZW). If the individual parties then fall within the scope of the collective agreement, they are bound by the rules of the collective agreement.
A collective bargaining agreement (“CBA”) is an agreement entered into between one or more employers (or associations of employers) and one or more associations of employees. The collective agreement serves to compensate for the weak bargaining position of the individual employee. A collective agreement mainly regulates terms and conditions of employment, e.g. wage levels, working conditions and working hours. A collective agreement can therefore be considered a supplementary regulation to the individual employment contract.
The collective agreement can apply to the individual employment contract in different ways:
bond by membership of one of the parties to the collective agreement;
incorporation clause;
collective agreement declared generally binding (AVV);
If the employer is affiliated to the CAO-concluding employers’ organisation and the employee is affiliated to the CAO-concluding employees’ organisation or trade union, the parties are bound by the CAO. However, it is important for the applicability of the collective agreement that the parties fall within its scope. The scope means to which company or companies and to which employees the collective agreement applies. Every collective agreement includes a provision describing the scope of the collective agreement.
A collective agreement also applies if the employer and employee have agreed so in the individual employment contract and ‘incorporate’ the collective agreement. If an incorporation clause is included in the employment contract, both parties are obliged to comply with the rights and obligations under the collective agreement.
A collective agreement can also be declared generally binding by the Minister of Social Affairs and Employment (SZW). If the individual parties then fall within the scope of the collective agreement, they are bound by the rules of the collective agreement.
Labour law offers special protection to employees in business takeovers. Indeed, at the time of a business takeover (transfer of undertaking), three employee-protective consequences occur. Firstly, all employees concerned are transferred from the transferor to the transferee while retaining their employment conditions. In addition, these employees enjoy dismissal protection and have the right to information and consultation. If the organisational change does not qualify as a transfer of undertaking, an employee does not have these special rights. Therefore, it is very important to determine when there is or is not a transfer of undertaking.
Employees are entitled to co-determination within the company under certain conditions. The core of employee participation law is contained in the Works Councils Act (‘WOR’).
The WOR obliges the employer to involve employees to a certain extent in important decisions affecting employees. An employer is obliged to establish a works council if (more than) 50 people work in his company. The obligation to set up a works council may also arise from a collective agreement or an employment conditions regulation adopted by a public law body.
In the education sector, different rules apply with regard to co-determination, as it also guarantees the participation of parents or students. This is regulated in the School Participation Act and the Higher Education and Scientific Research Act.
A fundamental right important to labour law practice is the employee’s right to respect for privacy or ‘privacy’. Personal data refers to all data that can provide information about a particular person. Think of the usual personal data (name, address, date of birth), but also data such as social security number, profession, nationality or medical data.
Questions that may arise in this context in terms of employment law include whether an employee has the right to enter into an affectionate relationship with a colleague, whether an employer may prohibit the wearing of a piercing, whether an employee must submit to monitoring in case of illness by the company doctor and whether an employer may observe the actions of its employees by means of cameras or other personnel monitoring systems. Always the question is whether an employee’s right to privacy may be restricted or whether the employee’s privacy takes precedence.
The right to strike is not included in Dutch law. Article 6(4) of the European Social Charter grants workers the right to take collective action in case of conflicts of interest. The right of action includes the right to strike. The Supreme Court has ruled that Dutch employees can also directly invoke Article 6(4) ESH if there is a dispute of interest between employer and employee over the level of wages or other terms and conditions of employment.
If a strike is covered by Article 6(4) ESH, the strike should in principle be tolerated as a lawful exercise of the right to take collective action. In that case, the employer (and third parties) must accept the nuisance caused by the strike. However, the employee’s right to strike is not unlimited. The court can prohibit the strike at the request of the employer (or a third party) if it is socially necessary.
The labour market is constantly changing. Employers are increasingly using flexible workers compared to the past. Flexible employment relationships are all employment relationships other than those based on an open-ended employment contract. Flexible labour allows employers to respond quickly and cheaply to changing circumstances inside and outside the company. Given the strict dismissal law, an employer often cannot achieve the desired degree of flexibility by employing only indefinite employees.
A flexible employment relationship can include, for instance, the use of temporary workers, seconded workers, self-employed workers and payrollers. Employees can also (initially) be offered an open-ended employment contract .
The freedom of employers to use flexible workers is not unlimited.
Accidents can happen anywhere, also in the workplace. After all, anything can go wrong even while performing work. For example, an employee exposed to hazardous substances while working may develop a serious illness later in life, and an employee may become the victim of a traffic accident during working hours. Similarly, an employee may be harmed if, for example, he is working in a mental hospital and is assaulted by a client there. The question is who is liable for the employee’s damage in the aforementioned cases.
The main rule for employer liability can be found in Section 7:658 of the Civil Code. This article imposes a broad duty of care on the employer to prevent an employee from being harmed in the performance of his duties. For instance, the workplace and the tools used to work must be safe and staff must be sufficiently instructed (and checked for compliance). If an employee is harmed in the performance of his duties, it is up to the employer to prove that he has fulfilled his duty of care. If the employer fails to comply with this duty of care, he is liable for all the damage suffered by the employee as a result of the accident.
Case law shows that it may follow from good employment practice that the employer is also liable for damage incurred outside the performance of his duties. This is the case when the accident is work-related and the employer has control over the activity or when there is a connection with the work and participation is (socially) mandatory. For example, consider an accident during a company outing.
Mediation is a method of resolving conflicts between two or more parties without court intervention. This is done through mediation by an independent third party, the mediator. A mediator does not take a stand, but guides the parties so that they can reach a solution to the dispute together.
In employment law, mediation has an important role. Judges often attach importance to whether parties have tried mediation before submitting a request for dissolution due to a disrupted employment relationship.
Social insurance law is the system of laws and measures that guarantees individuals income or care when a person is unable to do so themselves. This may be the case, for example, during disability, illness, retirement or unemployment. Social insurance law includes various benefits provided by the UWV. Laws and measures covered by social insurance law include the Unemployment Act (WW), the Sickness Act (ZW) and the Work and Income according to Labour Capacity Act (WIA).
The statutory director occupies a special position in employment law. This is because the statutory director has a dual legal relationship. This means that there is both an employment law (employment relationship) and a corporate law relationship between the company and the director. A statutory director then can either work for the company on the basis of an employment contract or on the basis of a contract of assignment (management agreement).
At the time the company wants to terminate the relationship with a statutory director, both ties will have to be terminated. This makes termination of such a relationship complex. A statutory director is in a special situation not only because of his position under dismissal law. The liability rules for directors also differ from those for regular employees.
We are happy to assist you!
Do you have a legal question or would you like advice
on a legal matter, please contact us.