Since the introduction of the Work and Security Act in 2015, there has been a statutory notification requirement in the Netherlands for temporary employment contracts of six months or longer. This requirement aims to provide employees with timely clarity about the possible continuation of their employment. However, ten years of practical experience and case law show that this seemingly simple requirement regularly leads to discussions and legal proceedings. We are happy to provide you with a clear overview of the relevant developments and points of attention.
The statutory obligation
The notification obligation means that the employer must inform the employee in writing at least one month before the end date of the temporary contract whether or not the employment contract will be continued and, if it is to be extended, under what conditions. If this is not done or not done on time, the employee is entitled to a notice payment. This payment corresponds to the part of the month for which the employer is late. The obligation seems simple, but its application in practice proves to be considerably more complex.
Written requirement
The written requirement is strictly enforced by the courts. A verbal conversation is never sufficient. Digital means such as email or messages via messaging apps can meet the legal requirement, provided that it can be objectively established afterwards that the employee actually received the content. In this regard, judges carefully assess whether the communication is clear, traceable and attributable. The written requirement is therefore strict, but not tied to a specific form. The key question remains whether proof of receipt can be provided.
The content of the notice must be unambiguous
Judges set high standards for the clarity of the content. A notice must make it clear to the employee, without reservation, that the employment contract is ending or, conversely, being continued. Formulations that leave room for uncertainty are not sufficient. Even if an employer indicates that the terms and conditions are still being considered, the notice is considered insufficient. Case law emphasises that the employee should know where they stand so that they can prepare for the end of their employment in good time.
Include a formal notice clause in the employment contract
Temporary employment contracts often include a standard clause stating that the contract will end by operation of law and will not be renewed. Although this approach is now widespread, case law shows that this does not automatically and in all cases constitute formal notice within the meaning of the law. A clause at the start of the employment relationship is not always regarded as an up-to-date notification of whether or not the contract will be continued at the end of its term. Judges generally require that the employee be actually informed at the appropriate time, i.e. around the end date. A contractual passage in the employment contract may therefore be insufficient in certain circumstances, especially if it is vaguely worded.
Continuing to work does not change the obligation
Even if an employee continues to work after the end date or if a subsequent contract is offered, the obligation to give notice remains an independent obligation. The obligation is not linked to the actual end of the employment relationship, but to the lack of timely clarity towards the employee. Case law therefore links the obligation to pay compensation separately from the question of whether or not the employment contract is ultimately continued.
Moderation of the notice severance allowance
Although the court is legally authorised to moderate the notice severance allowance, this rarely happens in practice. Case law emphasises that this is a formal obligation that serves an essential purpose. Even minor delays, of one day for example, usually result in the full compensation being awarded. Mitigation is only applied in exceptional situations, for example when the employee has not suffered any disadvantage and the circumstances are clearly exceptional. However, these situations are an exception to the rule.
Why does the notification obligation often remain problematic?
Ten years of case law show that the notification obligation mainly causes problems because the regulation is very formal, the margin for error is limited and the penalty is severe. Minor administrative errors can quickly lead to a substantial financial obligation. In addition, there are still grey areas, for example in digital communication, successive employership and differences between the announced and ultimately offered contract terms.
What does jurisprudence teach employers and employees so far?
For employers, it is important to schedule the notification obligation in good time, to communicate in writing and in a verifiable manner, and to carefully record which message was sent at what time. For employees, ten years of case law has provided a great deal of clarity. Anyone who is not informed or is informed too late can, in principle, claim the notification allowance, regardless of further developments in the employment relationship.
Questions about the notification obligation?
The employment law solicitors at SPEE advocaten & mediation advise both employers and employees on the application of the notification obligation, the formulation of the correct legal text and the prevention of problems and legal discussions about the notification obligation. Please feel free to contact us for tailored advice.