Below is an overview of the most significant judgments:
- Classification of employment agreements – The Supreme Court adhered to the Deliveroo framework and refused to rank the various considerations. In the Uber case, it confirmed that personal entrepreneurship can result in one worker being classified as an employee and another as a contractor, even when performing the same work. In the UMCG judgment, PhD students funded by research grants were classified as employees, and in the Helpling case, it was established that the cleaners were working under an employment agreement with Helpling.
- Grounds for termination under Article I and transition payment – In the Profoto judgment, the Supreme Court clarified that, even in the event of termination on the grounds set out in Article I, it must be assessed whether redeployment is possible; that the court may, of its own motion, award an additional Article I payment; and that the applicant must be given the opportunity to withdraw the application. In a second ruling, it held that a previous employment relationship which had been terminated by the employee themselves does not count towards the calculation of the transition payment.
- Legal presumption regarding scope of work – Rejecting an offer for a fixed scope of work does not preclude a successful reliance on the legal presumption under Article 7:610b of the Dutch Civil Code with retroactive effect. Both provisions coexist.
- Long-term temporary agency work – In the case of 13 years of uninterrupted temporary agency work through successive temporary employment agencies, abuse must be presumed where the duration of the temporary agency work exceeds what can reasonably be regarded as ‘temporary’ and there is no objective explanation for this.
- Discrimination where leave and days off coincide – Days off which are essentially no different from annual leave must be compensated for where they coincide with maternity and childbirth leave, on the basis of the prohibition of discrimination on grounds of sex. The scope of this extends beyond the education sector.
- Clause on study costs – The Supreme Court ruled that training which qualifies as compulsory training within the meaning of Section 7:611a of the Dutch Civil Code must be provided free of charge. This follows from an interpretation in line with the Directive on transparent and predictable working conditions, even though the legislator may not have clearly envisaged this consequence at the time of implementation. A clause regarding study costs for such training is void, and deviating bespoke agreements are not permitted.
- All-inclusive pay and the duty to complain – All-inclusive pay, including holiday pay, is not sufficient if the loss of turnover during holidays is not compensated, as this effectively discourages employees from taking holidays. Failure to pay the full wage during holidays constitutes improper performance, thereby triggering the duty to complain.
- Pension – In the Booking.com case, the Supreme Court ruled that claims for contributions from sectoral pension funds become due and payable no later than six months after the end of the calendar year, after which the limitation period under Article 3:308 of the Dutch Civil Code begins to run.
- Law of Evidence – The Supreme Court restricted the occupational health doctor’s functional privilege of non-disclosure and clarified that, under the Whistleblowers Protection Act, the employer must prove the contrary, and therefore cannot simply rebut the presumption of detriment.
The chronicle is a valuable source of knowledge and insight for anyone involved in employment law, whether in cassation proceedings or otherwise.