Labor Law

The lawyers active within the employment law section advise, among other things, on the content of the employment contract. The employment contract is screened for correct content and the latest current developments. An employment contract can also be drafted ‘from scratch’. In that case, the contract is completely customized and attention is paid to what suits the client’s company and its employees.

Employment contracts come in different shapes and sizes. For example, employment may be for a definite or indefinite period, there may be a probationary period, a non-competition and/or non-solicitation clause may be agreed upon, or a collective bargaining agreement (CBA) may apply.

Instead of entering into an employment contract, it is possible to choose to enter into a contract of assignment for the use of a worker. The choice depends on the circumstances of the case. If a contract of assignment is concluded, a client instructs another party to perform certain work on his behalf. The legal provisions that apply to employment contracts do not then apply.

A collective bargaining agreement (CBA) is a written agreement that sets forth agreements on terms and conditions of employment agreed upon between one or more employers or employer organizations and one or more employee organizations. Often a collective bargaining agreement applies to a specific sector.

Sometimes collective agreements are declared universally binding. This means that for a certain period of time, the collective bargaining agreement is mandatory for all employers and employees working in that industry. In addition, an employer may choose to declare a collective bargaining agreement applicable to an individual employment contract.

A non-competition clause is an agreement made between employer and employee to the effect that during and/or for a certain period after the termination of employment, an employee may not engage in business activities or activities similar to those of the (former) employer. This must be set out in writing, such as in the employment contract or in a separate regulation.

In principle, a non-competition clause in a fixed-term employment contract is not valid unless really necessary to protect the employer’s interests. It must then be a matter of compelling business interests, for example because very specific knowledge or business information needs to be protected. In addition, a non-competition clause is not permitted in an employment contract with an employee who is under 18 years of age.

How far a non-compete clause extends depends on the wording of the clause. It usually involves competitors in the industry. The clause must be clearly limited, especially considering:

• the duration of the clause;
• geographical coverage;
• The functional scope (what work).

The broader the clause, the more likely it is that the court will modify the clause at the request of the (former) employee, or even set it aside altogether.

A special form of a non-competition clause is the non-solicitation clause. The non-solicitation clause restricts the (former) employee’s freedom to maintain business contacts with relations of the (former) employer.

The lawyer adds value when drafting competition/relationship clauses. The lawyer is familiar with the legal requirements and the requirements of case law regarding the validity of a non-competition/relationship clause and can formulate a customized clause taking this into account.

Dismissal law comprises the body of rules that accompanies the termination of an employment contract. Both the employer and the employee can initiate the termination of the labor contract. The employment contract can be terminated by notice, dissolution or mutual agreement.

The employment contract can be terminated if there are ‘reasonable grounds’. This could include business economic reasons, culpable acts or omissions, or a disturbed working relationship. Importantly, the ground for dismissal must be sufficiently serious so that neither the employer nor the employee can reasonably be required to maintain the employment contract.

Dismissal practice has the so-called “i-ground,” which means that facts and circumstances based on a combination of grounds for dismissal may also be alleged.

Depending on the dismissal ground(s) in view, the employer will have to apply for a dismissal permit from the UWV or request the court to dissolve the employment contract.

If both parties agree to the termination of employment, they may choose to record it in a settlement agreement. With this settlement agreement, the employment contract ends by mutual agreement.

Does a temporary employment contract expire and is not renewed? Then the employment contract ends “by operation of law. The employer must then take into account the obligation to give notice, which means that an employer must indicate in good time (at least one month before the end date) whether or not he wants to continue the employment contract.

Dismissal law is complicated and exceptions to the rules are common. The help of a lawyer is not a luxury and can prevent or limit many problems.

The law includes rules on severance pay. A distinction is made between transition compensation and fair compensation.

In principle, the transition compensation is always awarded to the employee. The condition is that the initiative of dismissal lies with the employer. The amount of the compensation depends on the monthly salary and the duration of employment.

Employees with temporary employment contracts are also entitled to a transition allowance if the employment contract ends at the initiative of the employer. In addition, case law stipulates that in the event of a reduction in the scope of employment – under circumstances – the employee is also entitled to a partial transition fee.

Fair compensation can be awarded by the court if the termination of the employment contract is the result of seriously culpable acts or omissions by the employer. The amount of the fair compensation and how it should be calculated is not laid down by law. The size/amount of the fair compensation must take into account all the circumstances of the case.

If an employee cannot or can no longer perform all or part of his work due to illness, an accident or a defect, that employee is (partially) disabled. This entails additional obligations, costs and efforts for the employer.

Among other things, the employer faces :

• wage payment obligation;
• reintegration obligations;
• limited severance options.

In principle, the employment contract with a sick employee cannot be terminated during the first 104 weeks of illness. It is a misunderstanding that an employer can simply dismiss an incapacitated employee after that waiting period. Even in cases of long-term disability, an employer must be able to prove that the dismissal is reasonable, that there is no reasonable possibility of recovery and that no suitable work can be offered.

Of course, if the sick employee is willing to cooperate in the termination of his employment, then a settlement agreement can be reached.

A reorganization involves a change within the business organization. The change often results in the employer’s organization being redesigned. Not infrequently, the number of jobs is then reduced.

An employer has a duty of care. This means that an employer must protect the health and safety of its employees and take reasonable measures to prevent an employee from being harmed in the course of their work.

If an employee does suffer an injury while on the job, an employer can be held liable for the associated damages. To disclaim liability, an employer will have to prove that it has fulfilled its duty of care, and in the majority of cases this is not easy.

Employment law is an area of law that is constantly changing. More and more regulations and developments in case law give substance to the rights and obligations of employers and employees. An advisor in the field of labor law is no superfluous luxury for the employer – and, where appropriate, for the employees.