Below we inform you of the legislative change that took effect on 1 August 2022, the concrete steps employers should take, and sample clauses to include in new employment contracts.
1 August 2022: Transparent and Predictable Working Conditions Act
As of 1 August 2022, the Transparent and Predictable Working Conditions Act applies. Below are the key changes for employers.
Expanded duty to inform
The employer’s duty to inform has been expanded (Section 7:655 of the Dutch Civil Code). Employers must inform employees, in writing or (with the employee’s consent) electronically, about the duration and conditions of the probationary period, entitlement to holiday or other paid leave, training policy, and dismissal procedures (including notice periods). In addition, where a work pattern is unpredictable, employers must inform the employee of the days and hours on which they may be required to work, the notice period for being called in, and the number of guaranteed paid hours.
The sanction for failing to comply with the duty to inform is unchanged: the employee can hold the employer liable for any resulting damage (Section 7:655(4) BW). In practice, damages are rarely awarded.
Steps to take
For a new employee, depending on the type of information, the employer must provide the information listed in Section 7:655(1) BW within a week or a month of the start of work. This information can be provided in the employment contract, an applicable CLA, or a staff handbook. For employees already employed before 1 August 2022, the employer must provide the information referred to in Section 7:655(1) BW within one month of a request from the employee (Section 7:655(10) BW).
Side-activities clause void, unless …
A clause restricting side activities is void unless there is an objective justification (Section 7:653a BW). The law does not specify what counts as an objective justification. The legislative history suggests possible grounds: health and safety, confidentiality and protection of business information, the integrity of public services, or avoiding conflicts of interest.
Steps to take
The objective justification does not need to be stated in the employment contract itself – the employer can also rely on one after the fact. Existing side-activities clauses remain valid, but the employer must be able to objectively justify relying on them. If the employer has no objective justification, the clause is void and the employee may carry out side activities.
Training costs for the employer’s account where “need to have”, not “nice to have”
Mandatory training for an employee’s own role must be free of charge to the employee and, as far as possible, taken during working hours (Section 7:611a(2)-(5) BW). Mandatory training is training the employer is required to offer under EU law, national law, a CLA, or a scheme adopted by or on behalf of a competent authority. Exceptions apply to training an employee must complete to retain a professional qualification under the Professional Qualifications Directive (see: wetten.overheid.nl), and to domestic staff (Section 7:611a(3) BW).
What matters is the training obligation imposed on the employer – whether training necessary for the proper performance of the employee’s own role under the general training obligation (Section 7:611a(1) BW), or training required under other specific legislation (for example, the Financial Supervision Act).
The costs of this mandatory training may not be recovered from the employee, nor deducted from the transition payment. A study-costs clause that conflicts with this is void.
The employee must be able to take this mandatory training during working hours. That time counts towards obligations under the Working Hours Act. Whether the employee is entitled to pay for that time depends on the arrangements made.
Steps to take
Employers should bear the new obligations (Section 7:611a BW) in mind: mandatory training must be (1) free of charge and (2) in principle taken during working hours.
Study-costs clauses agreed before 1 August 2022, for training falling within the scope of Section 7:611a BW, are void.
Step-by-step: study-costs clause
Below is a step-by-step plan to determine whether the employer must offer training to the employee free of charge.
- Does the training fall under Section 7:611a(1) BW, or is the employer required, under national law, EU law, a CLA, or a scheme set by a competent authority, to offer the training to the employee? Section 7:611a(1) BW: “The employer shall enable the employee to undertake training necessary for the performance of their role and, insofar as reasonably required, for continuing the employment contract if the employee’s role lapses or they are no longer able to perform it.” No: a study-costs clause is permitted. Yes: proceed to step 2.
- Is the employee’s profession listed in the schedule to the Regulation on Regulated Professions (see: wetten.overheid.nl)? Yes: a study-costs clause is permitted. No: proceed to step 3.
- Is this domestic staff within the meaning of Section 7:611a(3) BW? Section 7:611a(3) BW: “Paragraph 2 does not apply to an employee who, on fewer than four days per week, performs services exclusively or almost exclusively for the household of a natural person by whom they are employed. Providing services for a household includes providing care to members of that household.” Yes: a study-costs clause is permitted. No: a study-costs clause is not permitted.
Prohibition on detriment
Employees may not be disadvantaged for exercising rights granted under this law, filing a complaint, or seeking assistance in that context (Section 7:670(9) BW). The employer also cannot terminate the employment contract on the ground that the employee is exercising rights granted under this law (Section 7:670(9) BW).
Sample clauses
Side-activities clause
“The Employee shall inform the Employer in writing in advance if the Employee intends, alongside their work for the Employer, to carry out any activities (whether paid or unpaid) for or on behalf of third parties.
The Employee shall provide advance notice of the party for whom they intend to carry out these side activities, and of their scope and nature. The Employee shall not carry out these side activities without the Employer’s prior consent. The Employer shall in principle grant this consent, unless the Employer has an objective justification for refusing it, such as the health and safety of the employee, protection of the confidentiality of business information, avoiding conflicts of interest, protection of the Employer’s good name and reputation, or other objective reasons.”
Duty to inform
“This employment contract contains various provisions with information the Employer must provide to the Employee under Section 7:655 of the Dutch Civil Code. In addition, the Employer informs the Employee of the following.
Besides holiday days, the Employee may also be entitled to other forms of paid leave, such as: parental leave, pregnancy leave, maternity leave, adoption leave, emergency leave, (additional) birth leave, short-term care leave and long-term care leave, in each case in accordance with the Work and Care Act.
If the Employer wishes to end the employment contract (prematurely), the various statutory options under Book 7, Title 10 of the Dutch Civil Code apply.”
If you have questions arising from the above, we are happy to help. Please contact us at mail@sorensenadvocaten.nl or call +31 (0)10-249 24 44.
