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6 Apr 2022 Ancillary activities clause will soon be prohibited in Dutch employment contracts

New labour law rules as of 1 August 2022

An important message for both employers and employees: later this year, the Directive on transparent and predictable employment conditions must be implemented in the Netherlands. This will result in a number of changes in Dutch labour law. This week, we discuss the consequences for the so-called ancillary activities clause.

What is an ancillary activities clause?

Many employment contracts contain a prohibition on secondary activities. This means that an employee is not allowed to perform work (outside working hours) for a different employer. It is also possible that only certain ancillary activities are permitted, or that employers require employees to obtain permission before carrying out such activities.

What will be the future rules?

The ancillary activities clause will be largely prohibited: prohibiting side-activities is no longer permitted, unless there is an 'objective justification'.

The law will probably read as follows in Article 7:653a of the Dutch Civil Code:

  1. A clause in which the employer prohibits or restricts the employee from performing work for others outside the times when the work must be done for that employer is null and void, unless this clause can be justified on the basis of an objective reason.
  2. The employer shall not disadvantage the employee by reason of the fact that the employee has asserted his rights under this article in or out of court, has provided assistance in this respect or has lodged a complaint in this respect..

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An existing ancillary activities clause is therefore null and void (i.e. not legally valid), UNLESS an employer can invoke an objective justification. Examples are: the health and safety of the employee, protecting the confidentiality of company information, the integrity of public services or avoiding conflicts of interest. Employers may also invoke other interests, such as the fact that ancillary activities are incompatible with the employer's obligations under the Working Hours Act.

It is possible to stipulate in the employment contract that an employer must first give permission for the ancillary activities. But beware: if an employee requests such permission, an employer may only withhold it by invoking an objective justification.

The new rules are expected to enter into force on 1 August 2022. According to the European Directive, there is no room for transitional law. It is therefore likely that the new legislation will take effect immediately on 1 August. We therefore advise employers to already critically examine existing employment contracts and staff regulations and, where necessary, have them amended.

Finally, it is important to note that the amended rules will also apply to directors of companies working on the basis of an employment contract. Especially in these cases, it is important to consider carefully in advance whether there is an objective justification for prohibiting ancillary activities. Clear agreements are in the interest of both parties.

Do you have any questions?

If you have any questions about this topic or other issues in employment law, please feel free to contact the experienced team of employment lawyers at SPEE lawyers & mediation. Of course we will keep you informed of further developments regarding the Directive and related topics.

SPEE advocaten & mediation Maastricht

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