Supreme Court of the Netherlands, 28 November 2025, ECLI:NL:HR:2025:1802
On-call workers: the relationship between the annual hours offer and the statutory presumption of working hours.
Facts
Taxiwerq is a payroll company for taxi drivers. Drivers are placed by Taxiwerq with various taxi companies. The employee has worked for Taxiwerq as an on-call taxi driver since July 2017. Since 6 July 2019, an indefinite-term zero-hours contract has applied between the parties.
Between March/April 2020 and June 2021, the employee worked little or not at all. From July/August 2021 onwards, he was called in again. Taxiwerq offered him, twice, to include a fixed number of hours in the employment contract. Both offers were rejected by the employee, meaning he remained employed under a zero-hours contract.
On 30 April 2021, the employee wrote to Taxiwerq requesting payment of wages, retroactively from 16 March 2020, for 42.5 hours per month. In these proceedings, the employee relies on the statutory presumption of working hours and claims payment of wages for the period from 3 August 2020 to 1 July 2021, calculated on the basis of 42.5 hours of work per month.
The subdistrict court granted the claim for the period from 30 April 2021, the moment the employee invoked the statutory presumption of working hours. The Arnhem-Leeuwarden Court of Appeal upheld the subdistrict court’s judgment.
Ruling of the Supreme Court
Section 7:610b of the Dutch Civil Code provides that, once an employment contract has lasted at least three months, the agreed working hours are presumed to equal the average number of hours worked in the preceding three months. A successful reliance on this presumption means the employment contract is deemed to have a specific number of working hours. A request to establish that number of hours can, moreover, be granted retroactively.
Under Section 7:628a(5) of the Dutch Civil Code, an employer with an on-call contract must, once the employment contract has lasted twelve months, make an offer for a fixed number of working hours within one month. That fixed number of hours must be at least equal to the average number of hours worked in the preceding twelve months. The employee has one month to accept that offer.
According to the Supreme Court, this arrangement does not affect an employee’s ability to still invoke the presumption under Section 7:610b of the Dutch Civil Code, even where they previously rejected an offer for a fixed number of hours, or where they wish to have it apply retroactively.
Conclusion
The annual hours offer (Section 7:628a(5) of the Dutch Civil Code) and the statutory presumption of working hours (Section 7:610b of the Dutch Civil Code) therefore exist alongside one another. According to the Supreme Court, an on-call worker can rely on the presumption even if they have rejected the hours offer multiple times. Rejecting an hours offer does not, therefore, block a wage claim.
For employers, it is important to keep making the mandatory hours offer every twelve months and to carefully record any refusals in the personnel file. This does not, however, mean the matter is then closed: an on-call worker can still enforce fixed hours based on the average number of hours worked in the preceding three months.
Click here for the full ruling (in Dutch).
Do you have questions or doubts about on-call workers and the importance of the hours offer? Our employment lawyers are ready to help.
