Fixed contract or not?

Can an employee rely on statements from her supervisor?

This week we discuss a recent judgment of the Subdistrict Court of The Hague. It concerns the question whether an employee may rely on the statement of her supervisor that she will receive a permanent contract.

The case concerns an employee (aged 54) who started working for Young Capital (YC) in May 2018, for 16 hours a week and for a fixed term. It is a so-called phase A contract. She is seconded to the Dutch Tax Authorities, to be more precise to the Tax Information Line. After she started working there, an exception was made to the hours to be worked at her request, due to personal circumstances. At the end of January 2020, YC entered into a fixed-term phase B employment contract with employee. Until November 15, 2020, the employee remains seconded to the Tax Authorities.

In early July 2020, the Tax Authorities posted vacancies for the Tax Information Line and employee seizes her opportunity, she applies on 6 July 2020. On July 29, 2020, she receives a verbal notification that her diploma has been approved and that she will be included in the procedure for permanent employment with the Tax Authorities.

Moreover, the supervisor of employee expresses the expectation that she would be permanently employed as of December 1, 2020. So, that means good news! But on 24 August 2020, a conversation takes place between employee and the Tax Authorities, about the number of contract hours. The employee was told that the Tax Authorities had no faith in her employability and flexibility. Therefore the employment contract was not extended.

Obviously, the employee is very disappointed and initiates a case before the Subdistrict Court. She claims that the Tax Authorities should offer her a written employment contract for an indefinite period of time, for 20 hours per week, as of 1 December 2020.

The Subdistrict Court finds in favor of the employee: she was given the legitimate expectation that she would indeed be offered a permanent position as of December 1, 2020. The management team left the communication with the employee to the supervisor concerned.

Under these circumstances, employee was entitled to rely on the communications she received from her supervisor. It was not until August 24 that a member of the management team discussed her contract hours.

Also, it cannot be held against the employee that it was clear to her, or should have been clear to her, that only after going through the entire procedure (after the interview about the terms of employment and the submission of the Certificate of Conduct) could there be question of a permanent employment contract.

The fact that the employee functioned well played a role in this. The interview on the terms of employment and the Certificate of Conduct were still only a formality, as is often the case. Incidentally, this may be different in exceptional cases, but in this case the Tax Authorities have not stated any facts or circumstances that would indicate otherwise.

Conclusion: the Tax Authorities acted contrary to good employment practices and were ordered to offer the employee a written employment contract for 20 hours per week for an indefinite period of time.

If you would like to read the entire ruling, you can do so here.

Are you an employer or employee and do you have questions about drafting or evaluating employment contracts, for a definite or indefinite period? Or do you have other labour law questions? The experienced employment lawyers at SPEE advocaten & mediation will help you on your way.

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