Rose Horstman

On 12 May 2026, the House of Representatives (Tweede Kamer) approved the legislative proposal More Certainty for Flexible Workers. This brings the introduction of new rules for on-call workers, temporary employees, and agency workers one step closer. In addition, the House of Representatives made a number of significant amendments to the proposal. The legislative proposal More Certainty for Flexible Workers aims to provide employees on flexible contracts with greater certainty regarding their income and working hours. Flexible contracts include, for example, on-call contracts, agency work contracts, and fixed-term contracts. In the Netherlands, nearly three in ten employees work on a flexible contract, making the Netherlands the front-runner in flexible working for the EU. Zero-hours contracts to be abolished, except for under-18s, pupils, students, and those entitled to the state pension One of the most widely discussed aspects of the legislative proposal is the replacement of zero-hours contracts with bandwidth contracts. A bandwidth contract closely resembles the current minimum/maximum contract, but the minimum number of contracted hours may no longer be zero, and the maximum may not exceed 130% of the minimum. An exception is made for young people under the age of 18, those that still go to school, students, and those entitled to the state pension (AOW) insofar as they work no more than 16 hours per week. This group may continue to work on a zero-hours contract. The rationale behind this is that workers in these categories still have a legitimate need for flexibility. The successive contracts rule is only broken after 36 months A fixed-term contract can, by operation of law, convert into a permanent contract. This is known as the ‘successive contracts rule’ (ketenregeling). The rule is triggered when a chain of contracts has exceeded a period of 36 months, or when a fourth contract is concluded, as long as the chain was not interrupted for a sufficiently long period at some earlier point. Currently, a gap of six months between two contracts breaks the chain. Under the legislative proposal, this interruption period will increase to 36 months. Only for pupils and students working no more than 16 hours per week will the interruption period remain at six months. This amendment is designed to prevent abuse: after the change, merely waiting before offering an employee a new contract is substantially less practical. The rules set out in the paragraph will apply to contracts concluded after 1 January 2028. Contracts concluded before that date will continue to be governed by the current rules. Improved legal position of agency workers Finally, the legislative proposal strengthens the position of agency workers. Phase A of an agency arrangement will be reduced from 78 weeks to 52 weeks. Phase B will change from a maximum of six contracts over four years to six contracts over two years. After Phase B, an agency worker must be offered a permanent employment contract. The House of Representatives has added to the legislative proposal that an agency clause (uitzendbeding) may not be invoked during any period in which an agency worker is incapacitated for work due to illness. As a result, an agency worker can no longer lose their job and income simply because they have fallen ill. Furthermore, the House of Representatives has tightened the rules on the terms and conditions of employment applicable to agency workers. The legislative proposal already establishes the principle that agency workers are entitled to at least equivalent terms and conditions of employment as employees who are directly employed by the client. For specific employment conditions, such as pay, allowances, holiday pay, bonuses, end-of-year payments, and leave arrangements, derogation will no longer be possible at all. What does this mean in practice? The legislative proposal is now before the Senate (Eerste Kamer). It is expected to be adopted, although further amendments may be made before it passes. Do you have questions about the effect the legislative proposal More Certainty for Flexible Workers will have on your organization? Feel free to contact Rose Horstman or any of our other specialists.

It has been a topic of considerable debate in employment law circles for quite some time: does an employee accrue holiday entitlement during a so-called dormant employment contract? Conflicting frameworks: Dutch law and European law Dutch law links the accrual of holiday entitlement to the payment of salary. The accrual of holiday days therefore stops when the 104-week waiting period during illness comes to an end. European law applies a different standard and links holiday entitlement to work, including periods of incapacity for work, and not the payment of salary. On the basis of the European legislation, sick employees would be entitled to full accrual of holiday days even after the 104 week waiting period. The fact that these different frameworks lead to uncertainty is evident from the conflicting rulings on the accrual of holiday days after the end of the waiting period. No accrual of holiday days after the end of the waiting period In the rulings in which the court rules that the employee does not accrue holiday days after the end of the waiting period, reference is made, among other things, to the recuperative function of holidays. After the expiry of the waiting period, the employee would no longer have any (reintegration) obligations, and as a result, holidays would lose its function of recovery and rest. In these rulings, courts also point to the fact that employees with a dormant employment contract receive social benefits (WIA or WW), under which they are entitled to holidays with continued payment of benefits. If the employee were also to accrue paid holiday days with the employer during the same period, that would amount to double entitlement. Accrual of holiday days after the end of the waiting period In an earlier blog, we highlighted the ruling of the District Court of Gelderland, in which the judge ruled that Dutch national law is incompatible with Article 31(2) of the Charter of Fundamental Rights of the European Union, which determines that every worker has the right to annual leave with pay. The court ruled that Article 7:634 of the Dutch Civil Code must therefore be excluded from application. The employer ended up being ordered to pay the holiday days accrued during the dormant employment contract. Preliminary question to the Supreme Court – awaiting an answer On 2 March 2026, the District Court of Rotterdam acknowledged the above-mentioned inconsistent case law and uncertainty. The court considered that proceedings will continue to yield inconsistent outcomes in the future without a definitive answer from the Supreme Court on the question of whether holiday days are accrued during a dormant employment contract. The court therefore intends to refer a preliminary question to the Supreme Court on this subject. Although it will take a little longer, employers can look forward to clarity on the accrual of holiday days after the end of the waiting period. Contact Do you have questions about leave and long-term illness, or would you like to exchange views? Please contact Annemiek Varkevisser, Rose Horstman or one of our other employment law specialists.

The long-term engagement of temporary agency workers is not unusual in many organisations. Temporary agency work is used to create flexibility and to absorb fluctuations in staffing levels. But how “temporary” is such work if the same agency worker has been working for the same hirer for many years? In a recent judgment, the Supreme Court made it clear that temporary agency work must genuinely be of a temporary nature.  Case: agency worker working for the same hirer for 13 years In a recent case before the Supreme Court an agency worker had worked almost continuously for nearly thirteen years at the same factory, first at Unilever and later at Upfield. He worked via various temporary employment agencies and successively performed the roles of production worker and dispatch worker. Formally, he was an agency worker. In practice, he performed the same structural work for many years for the same hirer. When Upfield closed the factory, permanent employees were able to invoke the Social Plan. This did not apply to agency workers. The agency worker argued that, due to the long duration of his assignment and the nature of his duties, he was entitled to the same protection as permanent employees. He relied on the Temporary Agency Work Directive (Uitzendrichtlijn) and the Dutch Allocation of Labour by Intermediaries Act (Waadi). In his view, there was no longer any question of temporary agency work with a temporary character, but of structural work. The subdistrict court and the court of appeal ruled in favour of Upfield. In their view, the need for a flexible staffing buffer justified the long-term use of temporary agency work. Upfield pointed to fluctuating workload, seasonal influences and the need to cover staffing gaps. Upfield had also taken other agency workers into permanent employment and had offered the agency worker concerned a one‑year contract. The court of appeal considered it relevant that Upfield therefore did not rely exclusively on temporary agency work. Supreme Court judgment: temporary agency work is by definition temporary The Supreme Court corrected the approach of the lower courts. According to the Supreme Court, temporary agency work must, by definition, be temporary. This follows from the Temporary Agency Work Directive. That Directive permits prolonged or successive engagement of an agency worker only if the temporary nature of the work is safeguarded and there is an objective justification. A general reliance on flexibility is not sufficient for this purpose. Precisely where an agency worker has been working for the same hirer for many years, almost without interruption, this is a strong indication that the work is structural in nature, according to the Supreme Court. The Supreme Court further held that long-term temporary agency work with the same hirer is an indication of possible abuse of successive agency contracts. In such a situation, the court must assess whether the agency structure is not being used to circumvent rules on the protection of employees, such as protection against dismissal, continued payment of wages and access to a permanent position with the hirer. According to the Supreme Court, the court of appeal applied the wrong test. The court of appeal accepted the need for a flexible staffing buffer too readily as an objective justification for thirteen years of temporary agency work. Nor does the fact that other agency workers were taken on as permanent employees and that the agency worker concerned was offered a one‑year contract alter this. In the Supreme Court’s view, the actual deployment of the same agency worker for thirteen years exceeds the boundary of what can still be regarded as temporary. The Supreme Court therefore quashed the judgment and referred the case to the Amsterdam Court of Appeal. Implications for practice: scrutinising temporary agency work The judgment marks a shift as regards the length of time for which an agency worker may be engaged by the same hirer. The key point is that temporary agency work must be temporary. Temporary agency work is intended to cover peaks, sickness, replacement or clearly defined projects, and not to fill structural positions for many years. Points of attention for employers that work with agency workers include the duration of the engagement and whether agency workers are deployed for a temporary project, a peak season or, for example, demonstrably fluctuating production. In addition, this judgment is also relevant in the context of Social Plans and collective labour agreement arrangements. Agency workers are still regularly excluded from such schemes. If temporary agency work in fact no longer has a temporary character, an agency worker may argue that he or she is entitled to protection comparable to that of a permanent employee of the hirer. Employers should be aware of this. Contact If you have any questions about the temporary nature of temporary agency work or would like to discuss this further, please contact 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 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.

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.