Dutch Supreme Court Holds Secondment Provisions May Be Invoked When a Secondment Worker Calls in Sick

On March 17, 2023, the Dutch Supreme Court definitively resolved the question of regardless of whether an work contract between a secondment company and a secondment worker might conclusion with fast outcome underneath the “secondment provisions” if the secondment worker falls ill.

What was this situation about?

The secondment worker in query was employed by Uitzendbureau Remedies B.V. underneath two successive secondment employment contracts (period 1 and period 2). He labored as a device operator. The secondment provisions used to his employment agreement. Below people provisions, an employment deal ends if the employing company is no for a longer time ready or able to employ the secondment employee or if the secondment worker can’t have out the stipulated work any for a longer period, for case in point thanks to sickness.

Possessing dropped two fingers in a place of work incident, the secondment employee identified as in sick. As a outcome, his work contract finished with speedy influence under the secondment provisions. The secondment worker subsequently took the placement that his employment deal had not finished and asked for ongoing payment of wages all through his unwell leave.

What did the District Courtroom and the Courtroom of Attraction rule?

The Hague District Courtroom denied the secondment worker’s ask for for ongoing payment of wages. The Hague Court of Charm dominated differently. According to the Court of Enchantment, the secondment provisions ended up voidable as they were opposite to the statutory prohibition towards termination for the duration of illness. Ahead of the Dutch Work and Protection Act was introduced, it experienced been attainable to deviate from this prohibition by means of a collective bargaining settlement, but that solution was taken out from the law. For this explanation, the secondment provisions had been no extended legally legitimate. The Court of Attraction thus granted the request for ongoing payment of wages.

Dutch Supreme Courtroom: secondment provisions upheld

The secondment agency introduced an attractiveness in cassation. In accordance to the Dutch Supreme Courtroom, the Court of Attractiveness was responsible of 1 essential misconception. The statutory prohibition from termination delivers that an employer may possibly not terminate an work contract throughout sickness. Having said that, application of the secondment provisions does not outcome in termination of the employment deal but alternatively in the deal ending by operation of legislation. This signifies that the statutory prohibition towards termination does not use, in accordance to the Dutch Supreme Court.

The Dutch Supreme Court then assessed irrespective of whether it was lawfully permissible to have an work contract conclude by operation of regulation in the party of illness. The regulation prohibits an work contract ending by operation of legislation when a relationship or registered partnership is entered into or due to the fact of being pregnant or childbirth, but the regulation does not incorporate a prohibition in opposition to an work contract ending by operation of law in the event of illness. This usually means that the secondment provisions are not contrary to any statutory prohibition. The Dutch Supreme Court docket then discovered that the secondment provisions in fact constituted a ailment subsequent. Nevertheless, a condition subsequent in an work agreement is permitted only if the employer (in this circumstance the secondment agency) does not have any manage more than the fulfilment of that issue. For this purpose, secondment provisions are legally valid only if the selecting business requests termination of the secondment worker’s assignment.

In shorter, the secondment provisions retained their benefit immediately after all, and the secondment worker was the unsuccessful get together. A legislative modification is required if the legislature needs to give unwell secondment employees far more security.