General
Whenever there is a conflict between an employer and an employee, the first thing the legal expert will want to know is which agreements were concluded between the employer and the employee. It is then useful when the agreements have been drawn up, preferably in a signed contract. Such contracts must contain a number of essential data and provisions, such as personal details of the employer and the employee, the nature of the work to be performed and the number of hours to be worked weekly.
Some provisions are subject to special legal conditions, e.g. the trial period clause and the competition clause. If the contract does not comply with these legal conditions, such provisions may easily not be lawful, which may have unpleasant additional adjective and financial consequences. Always be extra alert when you want to include such special stipulations.
Employment agreement for a definite period of time
At first sight an employment agreement for a definite period of time may seem the ideal solution for a labour relation of which contract extension is not (yet) certain - or to see for a while how things are going.
A labour contract may be concluded for a well-defined limited period of time, for instance for a few months. It may also be concluded for the duration of a project or for the duration of the absence of an employee who is temporarily being replaced. One of the conditions is always that the parties have no influence on the termination of the contract during the duration of the contract.
Note that a trial period should never exceed one month in an employment agreement for a period not exceeding two years, this under penalty of nullity. The collective labour agreement may include exceptions to this rule.
Another pitfall is the tacit continuation of the contract upon expiry. It means that the employment conditions will remain unchanged, but termination of the contract may become more difficult.
By law, an employment agreement for a definite period of time automatically changes into an employment agreement for an indefinite period of time if it is extended after a period of three years or when it is extended for the fourth time during this period.
A final remark: People often forget that an employment agreement for a definite period of time cannot be terminated in the course of the duration of the contract, unless this has been expressly agreed upon in advance.
On-call contract
The pitfall of an on-call contract is that, over time, the employee may claim a minimum number of hours at which s/he is actually performing work for his/her employer. The judge will look at the average number of hours that the employee has actually been performing work for the employer during the previous three months. An on-call contract then quickly becomes an employment agreement for an indefinite period of time, which may not be easy to dissolve without a struggle. If this is not what you want, there needs to be express agreement about the duration of the contract and about a trial period, if any.
Employment agreement for an indefinite period of time
Did you know that an employer and an employee could agree in advance on financial consequences, should the labour contract be broken? Particularly in the case of higher management jobs and recruitment of difficult-to-find/get staff members, this may be an ideal way to bind an employee to the company. It prevents a possible dismissal procedure from becoming an unpredictable financial hurly-burly for the employer. And, as an employee, you know better what to expect if the employment is terminated.
It is recommended that an employer describes the nature of the work to be performed in general terms, particularly in employment agreements for longer periods of time. This makes it easier to change the employee's job in case of a reorganisation. The employee, on the other hand, is better off with a job description that is as detailed and accurate as possible. It means that s/he does not have to accept just any other alternative job.
The employment agreement
For the sake of uniformisation, a company may link general labour conditions to its individual employment agreements. However, they need to be incorporated integrally into the employment agreements concluded with individual employees. In the models presented above, the assumption has been that the general labour conditions have been integrated and handed over when the contracts were signed.
In terms of labour conditions the attached model is more extended in many aspects than the legal minimum arrangements, e.g. with regard to the holidays. Without any legal requirement for it, the contract also includes a bonus arrangement if the employee does not take any sick leave in any given year. It also includes examples of a pension scheme and a company car arrangement.
Of course, such a general labour conditions agreement must always be tailored to the situation within your company. It is not a Copy&Paste type document. If you just copy & paste, you are asking for trouble, and as soon as a conflict arises, the remedy may actually be worse than the disease. Note that stipulations are legal only when they have been incorporated in the correct manner into the individual employment contracts. Call in legal expertise if you want to start using such general labour conditions. Call +31 40 284 11 72 or email: marco.swart@advocaat-swart.nl.
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Legal scan
We are happy to assess the employment agreements that your company uses. For each type of employment agreement, we charge an assessment fee of € 95. If your company uses only employment agreements for an indefinite period of time, a single assessment will suffice. If you also use employment agreements for a definite period of time, we will charge an additional € 95 for this. The same amount will be charged when an employment agreement with an individual employee needs to be assessed.
We charge € 250 to assess a Labour Code. If a collective labour agreement applies to the code, we will add a surcharge of € 200 to study the collective labour agreement and compare it to the code.
Regarding the models to be used, all the client has to do is to supply the models used including additional remarks and/or comments, if applicable. When the contracts of individual employees need to be assessed, we need the data of the employees involved, such as first names and last name, city of residence, address, national insurance number (Dutch sofi number), job, salary, term of notice, any restraints of trade or competition clause - but these will be included in the contract. It may be useful to provide a corporate brochure as well.
The agreements will be checked for consistency with the law, i.e. whether the terms of notice have been complied with correctly, whether any applicable collective labour agreement or labour code has been implemented in the correct manner, whether the trial period has been dealt with in the correct manner, whether the formulation of the competition clause is correct, whether the agreement contains all legally required elements, whether the job description is clear or detailed enough, how sick leave is arranged, whether there are any contradictions (or possibilities for various interpretations) in texts and terms used, etc.
Naturally, the time needed for this must be within reasonable limits. The contracts must therefore be supplied in such a way that they can be assessed and discussed within 30 minutes per model type.
