Our longstanding partner Diplomat Magazine has interviewed our employment law and diplomatic missions expert Jan Dop on the relevance of Dutch employment law for Embassies and Consulates in the Netherlands.
Diplomat Magazine recently conducted an interesting interview with our longstanding partner, Jan Dop, from Russell Advocaten, a firm that has been accompanying us for over 10 years in all legal matters. Our focus was on Dutch Employment law, a significant concern for many diplomatic missions. Let’s listen to the expert legal counsel.
The employment contracts of locally hired staff and private servants employed with diplomatic mission including Ambassadors are mostly governed by Dutch employment law. Employers can in principle determine, in consultation with their employees, what is included in the employment contract. However, Dutch law imposes a number of requirements on certain clauses. Which clauses are useful in an employment contract, what do they imply and what should you be aware of? This article discusses various clauses that we recommend to include in an employment contract such as:
Upon entering into an employment contract, employer and employee can agree upon a period within which both parties can terminate the contract with immediate effect at any time: the probationary period. However, it is not allowed to include a probationary period clause in a fixed-term employment contract for a period shorter or equal to six months. If an employment contract is entered into for a period exceeding six months, it may be agreed upon a maximum probationary period of one month. A maximum probationary period of two months may be included in employments contracts for 2 years or longer and for an indefinite period.
A probationary period does only apply if it (1) has been agreed upon in writing and (2) is the same for both parties. Please note that a probationary period may only be included once and cannot be extended for example because of illness of the employee.
An ancillary activities clause usually means that employees are not allowed to perform other work than for their employer, unless they have received approval to do so. The prohibition of other paid or unpaid activities is limited to the duration of the employment contract. An ancillary activities clause may prevent that employees perform other undesirable activities or that they will get overburdened by having several jobs. A prohibition to perform ancillary activities is only valid if it can be justified on the basis of objective grounds.
If an employment contract contains a unilateral amendments clause in writing, it may be a little easier for the employer to unilaterally change the employment conditions of the employee. Employees are protected by employment law, so, in principle, the terms and conditions of employment can only be changed with the consent of the employee. However, if a unilateral changes clause has been agreed upon and the employer has a substantial interest, the employee’s interest in maintaining his terms and conditions of employment may sometimes have to give way.
The incorporation clause is a clause in the employment contract in which a personnel handbook or code of conduct containing employment conditions and internal regulations of the Diplomatic Mission will be declared applicable. The employee and employer are therefore bound to these additional rules and regulations in case of such a clause.
When performing their work, employees will get familiar with confidential information of the employer or relations. To achieve that employees will treat this kind of information carefully, a confidentiality clause can be included in the employment contract. A confidentiality clause determines that the employee will observe secrecy towards confidential information, both during and after the employment.
The employment contract may include that the employee owes a penalty if he violates the agreed-upon conditions. It may be determined that an employee who breaches for example the confidentiality obligation has to pay a certain amount for each violation. The amount of the penalty can be by reduced by the judge.
Of course more clauses are possible, like a non-compete clause, social media clause or specific rules applicable to illness of the employee. Apart form these optional clauses, Dutch law prescribes which basic information the employer has to give the employee about the employment contract and in which way this must be done. These mandatory information includes the description of the job, whether the contract is for a definite or indefinite period, the duration of the contract if it is for a definite period, the right to holidays, the amount of salary, the notice period, the working hours per week, whether overtime is paid and whether the employee is socially insured.
Would you like to get more information on employment contracts and what you can and must include? Do you need assistance in drawing up and assessing a contract? Would you like to know whether a situation is in violation of the agreed conditions of employment? Please contact Jan Dop, LL.M. (jan.dop@russell.nl) or embassydesk@russell.nl or visit our websites www.russell.law and www.embassydesk.nl. We are dedicated to helping you!
From 1 January 2025, the Dutch Tax and Customs Administration is going to enforce the Deregulation of Assessment of Employment Relationships Act (DBA). How will this affect principals and self-employed workers?
The statutory minimum hourly wage changes every six months. What are the new amounts as of 1 July 2024?
On the departure of a statutory director/shareholder, any participation in the company must also be settled. Then a discussion may arise about the value of this participation, depending on whether the director counts as a good leaver or bad leaver. What should companies and directors pay attention to when interpreting a leaver arrangement?
An employer can include a resolutive condition in the employment contract. However, this can only be done in exceptional cases. What requirements must a resolutive condition meet? Is the employee entitled to transitional compensation when the resolutive condition takes effect?
The government has detailed its plans for tightening non-competition clauses in a legislative proposal. What are the proposed conditions for valid reliance on a non-competition clause? How will the proposal affect existing clauses?
How is your works council performing this year? As a works council, do you have many requests for advice and consent? Do the legally required consultation meetings with the company take place? Use our brief checklist to assess your cooperation with the company.
