Under the Dutch Working Conditions Act, employers are obliged to provide a safe working environment. In this context, employers sometimes implement a strict alcohol and drugs policy. But how far can that go? Can an employer test an employee for alcohol or drug use? The Limburg District Court recently ruled on this issue. What can employers do in this regard? Ruling Limburg District Court – 20 February 2025 The case concerned SIF Netherlands B.V., a manufacturer of foundations for offshore wind farms, which had introduced a zero-tolerance policy regarding alcohol and drug use. One of its employees, employed since 2008 and responsible for quality inspections, tested positive for cannabis during an unannounced saliva test on 25 September 2024. Several colleagues also reported red eyes and strange behaviour. While the employee admitted to having used cannabis the previous evening, he denied being under the influence while at work. Nevertheless, SIF sought permission to terminate the employment contract on the basis of serious culpable conduct (ground e), a disrupted employment relationship (ground g), or a combination of grounds (ground i). The court rejected the request for termination. Although the question of drug use was considered legitimate, the court ruled that the test did not establish that the employee had been under the influence during work hours. Moreover, the test had been conducted unlawfully, breaching the employee’s right to a private life and privacy. As a result, the test results were excluded. Moreover, the witness statements from colleagues were deemed insufficiently substantiated to justify termination. The Legal Landscape Employers have a legal duty to ensure a safe working environment. The question is under which circumstances they may take a specific measure to test for drugs and/or alcohol. There is ample case law involving employees appearing at work under the influence of drugs or alcohol, where disciplinary actions were upheld. Yet, this employer’s request for termination was not upheld. Why is that? Employment Law Consequences If an employer suspects an employee of being under the influence in a way deemed unacceptable, disciplinary measures may be taken. Although Dutch law does not list exhaustive employment-related sanctions, potential measures include a formal warning, suspension, wage withholding, a fine, or even dismissal (including summary dismissal). The challenge of evidence Any sanction must be justified and proportionate to the alleged misconduct. The employer bears the burden of proving both the conduct and the proportionality of the measure. Courts also assess whether the evidence was lawfully obtained. Unlawfully obtained evidence may be excluded. In the context of alcohol or drug testing, courts will weigh the interest in truth-finding against the employee’s right to a private life and privacy. The Right to private life The right to a private life, protected under Article 8 of the European Convention on Human Rights (ECHR), shields employees from unwarranted intrusions. Alcohol and drug testing constitutes an infringement of this right. Such an infringement is only permitted under strict conditions. The court will assess whether the infringement serves a legitimate goal and is suitable to achieve that goal (necessity criteria), whether the infringement is proportionate (proportionality criteria) and whether there is a less intrusive alternative (subsidiarity criteria). GDPR considerations When an employer processes personal data of a employee, the General Data Protection Regulation (GDPR) applies. The results of alcohol and/or drug testing constitute a special category of data. Processing of such data is in principle prohibited, unless one of the exceptions under the GDPR applies. According to the Dutch Data Protection Authority (AutoriteitvPersoonsgegevens or ‘AP’), processing such data requires a specific legal basis. Currently, such a basis exists only for certain sectors (e.g. aviation and maritime and public transport). Practical recommendations for employers Testing for alcohol or drugs in the workplace is legally complex. Employers should verify whether their sector has a statutory basis allowing testing. Its advisable to consider adopting a written zero-tolerance policy outlining potential disciplinary measures in the case of a breach, including (immediate) dismissal. If you suspect an employee is under the influence during working hours, take them aside privately with a witness present. Ask the employee directly whether alcohol or drug use is involved and stress that this is a safety matter. If you are reasonably convinced that substance use is at play, suspend the employee and send them home. Document the incident and the meeting as thoroughly as possible and confirm your findings to the employee in writing, inviting a response. The appropriate sanction will depend on the specific circumstances. Seek legal advice as soon as possible before initiating further steps. Contact Would you like to introduce or update your alcohol and/or drugs policy? Do you suspect an employee has appeared at work under the influence? Do you have another related question? Please do not hesitate to contact Gerard Zuidgeest, Rose Hortsman or one of our other employment law specialists. We would be happy to assist.

When should an employee disclose information about chronic physical or psychological complaints during a job application? This was the subject of a recent ruling by the Court of Appeal in ‘s-Hertogenbosch. The disclosure of medical Information in the application procedure An applicant is not required to voluntarily provide medical information. This is only different if the applicant knows at the time of concluding the employment contract that their health condition would significantly and long-term hinder them in performing the job duties. Additionally, an employer may not ask questions about the health condition of a prospective employee, past sick leave, or any limitations during the application process, except in the context of a legally permitted medical examination. Ruling: the facts in the case before the Court of Appeal in ’s-Hertogenbosch The employee in this procedure had suffered from chronic psychological complaints (PTSD and an anxiety disorder) since 2011 following an unsuccessful surgery. The employee applied for a position as a security guard at a courthouse in October 2023 and did not disclose his medical situation during the application process, nor the fact that he was currently unfit for work as a security guard at the Department of Transport and Support (DV&O) of the Ministry of Justice and Security. The employee was hired and was declared fully recovered by the DV&O company doctor at that time. Shortly after starting at the courthouse, the employee fell ill. The employer requested the termination of the employment contract due to gross misconduct, arguing that the employee had failed to disclose his medical situation. The employer’s requests were denied in the first instance. Court’s judgment: no disclosure obligation for employee The Court of Appeal, like the subdistrict court, ruled that there were no grounds to terminate the employment contract. The court ruled that the disclosure obligation only exists if the illness or disability makes the applicant unfit for the position and the applicant knew or should have understood this. In this case, the employee had fallen ill several times at his previous employer, but this was not due to the specific job requirements, and the employee had always fully recovered. The position at the courthouse was less demanding than the position at DV&O, leading the employee to believe that his chronic illness would not be an issue. The employer argued that an applicant must also disclose their illness if the illness does not absolutely prevent the performance of essential job requirements, but the applicant will experience significant hindrances in fulfilling the role. The court dismissed this argument, as it would mean that every chronically ill person would have to disclose their chronic illness during a job application, which is contrary to the protection provided by the Dutch Equal Treatment Act on Grounds of Disability or Chronic Illness (Wgbh/cz). Practical tips As an employer, do not ask questions about the health condition, past sick leave, or any limitations of the applicant during the application process, unless it concerns a legally permitted medical examination. Additionally, ensure that the job requirements are detailed and are clearly stated in the job application and/or job profile. Discuss these requirements during the application process and ensure written documentation. If possible ask the former employer for references. Contact Do you have questions about the disclosure obligation during job applications or would you like to discuss further? Please contact Gerard Zuidgeest, Rose Horstman, or one of our other employment law specialists.

On February 21, 2025, the Supreme Court ruled on the classification of employment relationships, specifically in the context of self-employed workers. As early as 2021, the Amsterdam District Court ruled that Uber drivers are employed under an employment contract, meaning that Uber must comply with the Taxi Transport Collective Labour Agreement (CAO). On appeal, the Amsterdam Court of Appeal asked preliminary questions to the Supreme Court regarding the role of the criteria ‘entrepreneurship’ in assessing the employment relationship. The Supreme Court has now provided answers to these questions. No hierarchy in criteria In the Deliveroo ruling, the Supreme Court ruled that the assessment of whether an agreement constitutes an employment contract depends on all the circumstances of the case. This includes the nature and duration of the work and the way the work and working hours are determined. In the Uber ruling, the Supreme Court clarified that there is no fixed hierarchy among these criteria. This means that all nine criteria must be equally weighed. For employers, this means that the classification of an employment relationship can be more complex, as every aspect of the working relationship must be assessed. This can lead to different outcomes, even if two workers perform the same work under the same conditions. Entrepreneurship: external aspects matter An important aspect emphasised by the Supreme Court is the entrepreneurship of the self-employed worker. The Supreme Court considers that the entrepreneurship criterium is not given more weight than the other criteria. This means that entrepreneurship can be decisive for the classification of the agreement. Not only does the general entrepreneurial situation of the worker in the relationship between the workers and the client play a role (internal entrepreneurship), but circumstances outside the relationship are also important (external entrepreneurship). In terms of external entrepreneurship, one might consider whether the worker is registered with the Chamber of Commerce, the number of clients the worker has outside the specific relationship, or the number of investments the worker makes for its own business. Retaining self-employed workers? Stimulate entrepreneurship! Employers are advised to encourage the external entrepreneurship of their self-employed workers. This can be done, for example, by encouraging them to take on assignments from multiple clients and ensuring that the worker clearly profiles themselves as an entrepreneur, for instance, with their own website. Contact Do you have questions about the classification of employment relationships or would you like to discuss this further? Please contact Gerard Zuidgeest, Rose Horstman, or one of our other employment law specialists.

On February 19, 2025, a bill was proposed that limits the compensation scheme for the transition payment in case of dismissal due to long-term disability to small employers. This proposal has significant implications for employers. The compensation scheme, originally intended to relieve employers, will now only be available to small employers. This article discusses the details and implications of this change. Limitation on Compensation for Transition Payment The compensation scheme for the transition payment was introduced to support employers in paying the transition payment after 104 weeks of illness. For many employers, it felt unjust to have to pay a transition payment after two years of continued salary payment. This often led to ‘dormant employment contracts’, where the employment contract was not terminated to avoid payment of the transition payment. With the new bill, the government aims to limit the compensation scheme to small employers. Small employers are defined as those who have been active for less than two years or have a wage bill of no more than 25 times the average taxable wage per employee. In 2025, this threshold was set at a wage bill of no more than € 990,000 per year. Implications for larger employers For medium-sized and large employers, this change means that they will have to pay the transition payment themselves in case of dismissal due to long-term disability. This can have significant financial consequences. The question arises whether employers are still obliged to terminate the employment contract if they are not compensated. The legislator leaves this to the judiciary, but it is likely that existing case law will be maintained. The change is expected to take effect on July 1, 2026. No transitional law is proposed, meaning the new rules will apply immediately. Employers will only be eligible for compensation if the 104-week waiting period ends before the law comes into effect. No specific arrangements have been made for special employers, such as social development companies. Contact Do you have questions about the compensation scheme for the transition payment or would you like to discuss it? Please contact Gerard Zuidgeest, Rose Horstman, or one of our other employment law specialists.

On 14 March 2025, the Dutch Supreme Court (‘Hoge Raad’) issued an important ruling in the context of the Act on the Resolution of Mass Claims in Collective Actions (“WAMCA”) (ECLI:NL:HR:2025:388). One of the key questions the Supreme Court addressed was whether an extension of the so-called three-month period for serving a writ of summons, pursuant to Article 1018d(2) of the Dutch Code of Civil Procedure (“Rv”), has general effect or applies only to the legal entity that requested the extension. The Supreme Court’s decision is clear: an extension of the three-month period does not have general effect—it applies only to the legal entity that requested it. Background of the Case The case concerns collective claims brought by various foundations against Apple. Apple was summoned on October 4, 2021, by the Right to Consumer Justice Foundation (“Stichting RCJ”). Pursuant to Article 1018d(1) Rv, other foundations wishing to file a similar collective claim had three months to do so – until January 4, 2022, in this case. Article 1018d(2) Rv provides that a court may extend this three-month period upon request by another legal entity seeking to initiate collective proceedings. In this case, the court granted an extension of three additional months at the request of another foundation, the App Stores Claims Foundation (“Stichting ASC”), extending the deadline to April 4, 2022. This procedural decision was published in the central register for collective claims on November 29, 2021. Stichting ASC summoned Apple within this extended period. Another foundation, the Consumer Competition Claims Foundation (“Stichting CCC”), also summoned Apple within the extended period – on March 31, 2022. However, this meant that Stichting CCC had issued its writ of summons outside the original three-month period. The question in the proceedings was whether Stichting CCC could be deemed admissible in its collective claims, given that its summons was served after the initial three-month period had expired. At first instance, the court declared Stichting CCC inadmissible because it had not served its writ of summons within the statutory three-month period. The court ruled that an extension of the period under Article 1018d(2) Rv does not have general effect—the extension granted to Stichting ASC applied only to Stichting ASC. Stichting CCC disagreed and an appeal was files directly with the Supreme Court (‘sprongcassatie’). Supreme Court Decision The Supreme Court upheld the lower court’s ruling. It confirmed that an extension of the three-month period under Article 1018d(2) Rv does not have general effect. The Supreme Court noted that, according to the legislative history of the WAMCA, a court’s decision on an extension request must be tailored to the specific circumstances of the legal entity making the request. This, according to the Supreme Court, implies that an extension applies solely to the requesting legal entity and does not have a general effect. The Supreme Court also pointed out that this interpretation aligns with the absence of a requirement for extension decisions to be registered in the central register for collective claims. Conclusion For foundations seeking to initiate similar collective claims, it is crucial to closely monitor the collective claims published in the central register for collective claims. While it is understandable that Stichting CCC also considered the court’s procedural decision granting an extension to Stichting ASC, the publication of a summary of the initial summons in the central register remains decisive for determining the start of the three-month period. If an organization needs more than three months to prepare its case, it must submit a reasoned request for an extension of the three-month period to the court within one month. Organizations cannot rely on procedural decisions regarding extensions granted to other foundations that may be published in the central register for collective claims. Questions about the WAMCA? Please contact Lennart Hoeksema, Arnout Koeman or one of our other WAMCA specialists.