We previously wrote about the implications of the transparent and predictable employment conditions Act.
One of those implications is, that since 1 August 2022, an employer must have good reasons to still prohibit secondary activities of employees.
Since 1 August 2022, any employee may work outside working hours for another employer, unless the (first) employer has an objective reason to prohibit the secondary activities. This is stipulated in the new Section 7:653a of the Civil Code.
In Article 9 paragraph 2 of the guideline on transparent and predictable terms of employment, elaborates out this objective reason.
- In conflict with health or safety;
- Protection of the confidentiality of company information;
- Integrity of public services;
- Avoiding lengthy conflicts.
In practice, therefore, to prohibit secondary activities outside working hours, the employer must have a justification, such as protecting company secrets or avoiding conflicts of interest.
The Explanatory Memorandum to the new guideline, incidentally, shows that it is not necessary for the clause itself to contain the objective justification. The reasons are:
- Existing clauses that do not include the objective justification can be maintained in this way;
- In addition, the justification can change under circumstances such as the lapse of time.
If, as an employer, you still have employment contracts containing an "old" prohibition on secondary activities clause, it is wise to have this reviewed and amended. If you have (other) questions on this subject, or if you would like help and advice in adjusting your employment conditions so that they are fully in line with the transparent and predictable employment conditions Act, SPEE advocaten & mediation’s employment law attorneys will of course be happy to assist you.