New employment law: From 1 January 2015, watch out for standard provisions!

New employment law:
From 1 January 2015, watch out for standard provisions!

If a fixed-term contract is closed or renewed as from 1 January 2015 attention should be paid to standard provisions, such as the trial period and the non-compete clause. As a consequence of the Dutch Work and Security Act (WWZ), part of which will be effective as from 1 January 2015, new rules apply!

A probationary or trial period is not allowed anymore for fixed-term contracts up to 6 months. It is considered undesirable in such a short-term contract.
To contracts with a longer duration, from 1 January 2015 onwards, the current rules will remain applicable. As from 1 January 2015 the (maximum) trial periods are:

• contract for six months or less: no trial period
• contract for more than six months but less than two years: one month
• contract for two years or more: two months
• contract in which the end date is not determined on a calendar date (e.g. replacement during illness): one month

Exceptions can only be made based on an applicable Collective Labour Agreement (CAO).

To prevent nullification of (dismissal in) the trial period, keep in mind that the new legislation will apply to contracts concluded on or after 1 January 2015. It depends on the date of signing whether current or future legislation applies.
Deviating CAO-provisions that exist at 1 January 2015 will remain applicable until 1 July 2016, or that much earlier as the CAO ends.

If you insists on a trial period after 1 January 2015, then conclude a contract for a period longer than six months, e.g. for six months and one day or instead for a much shorter contract e.g. for two months. Consequence of the last option is, of course, that already one of the three allowed successive contracts is used up. The new notification obligation however does not apply in case of a contract for less than six months.

Furthermore no fixed-term contract can include an unmotivated non-compete clause. This is invalid thus, regardless of the contract’s duration, unless there are special circumstances which must be included in the contract.

Under the new legislation a written motivation that a non-compete clause is necessary on grounds of compelling interests of the business must be included. Be advised to avoid generalized phrases. The motivation as to why it is necessary to insert the clause needs to be tailored to the specific function of the employee. If there is not enough interest the employee can nullify the non-compete obligation, whether or not in court.

The inclusion of a non-competition clause in a fixed-term contract will mean taking the effort to customize it fully to fit the business needs. This also seems to apply to a business relations clause that is viewed as a form of a non-competition clause.

Non-compete clauses in fixed-term contracts already in force on 1 January 2015 will continue to apply. The duty to substantiate applies to fixed-terms contracts concluded or renewed on or after 1 January 2015. So watch out for contracts entered into prior to 1 January 2015 but extended for another fixed term after 1 January 2015.

In case you have questions or need advice, don’t hesitate to contact us

Mr A. Kielczewska | Ruig+Partners advocaten | Pr. Margrietplantsoen 76 | 2595 BR DEN HAAG
T: +31 70 363 35 55 | F: +31 70 365 10 51 | E: kielczewska @ruigpartners.nl | www.ruigpartners.nl