Many on-call workers, especially in the hospitality industry, structurally work more hours than stated in their employment contract. This can lead to disputes: how many hours truly belong to the contract? This becomes especially important in case of illness, holiday, or dismissal.
The legal presumption of scope of work is therefore essential for both employees and employers to keep a close eye on. For example: you start with a zero-hours contract, but then structurally work 40 hours per week. After three months, your employment contract no longer counts as a zero-hours contract, but is presumed to be a contract for 40 hours. This statutory provision ensures that employees are not left in uncertainty about their right to fixed hours and corresponding protection. At the same time, it provides clarity for employers about their obligations towards employees who structurally work more than they were formally hired for.To prevent this ambiguity, the legal presumption of scope of work exists. This gives employees the right to claim the average number of hours worked as the contractual scope of work.
What is the legal presumption of scope of work?
The law stipulates that when an employment contract has lasted at least three months, the scope of work is presumed to be equal to the average number of hours worked in the past three months.
In concrete terms: if you have worked an average of 30 hours per month, you may claim payment for 30 hours per month — even if your contract states 0 hours.
Legal presumption of scope of work for zero-hours contracts
Disputes arise particularly with on-call workers with a zero-hours contract. On paper, there is no guarantee of hours, but in practice, on-call workers often structurally work more hours. The contract then increasingly resembles a permanent position.
Example from practice:
An on-call worker in the hospitality industry worked an average of 25 hours per week for six months. When there was less work, the employer only paid for the hours he was scheduled. Through the legal presumption of scope of work, the employee was still able to claim payment for 25 hours per week.
Does the legal presumption also apply to min/max contracts?
Yes, even if you have a min/max contract or an employment contract with a fixed number of hours, you can invoke the legal presumption of scope of work. If you structurally work more than the minimum number of hours stated in your contract, you may claim the average number of hours worked in the past three months as your new contractual scope of work. It therefore does not matter whether a minimum, maximum, or fixed number of hours is on paper — what matters is how many hours you actually work in practice.And what about temporary agency workers?
The legal presumption of scope of work does not only apply to on-call workers with a zero-hours contract, but also to temporary agency workers. So if you work through a temporary employment agency and have been structurally working more hours than agreed for months, you can equally claim the average number of hours you have actually worked. It does not matter whether you are directly employed by the company or work through the temporary employment agency.When does the legal presumption apply?
The legal presumption can be invoked if:
You have worked for at least 3 months, and;
You have structurally worked more hours than stated in the contract.
The employer can only refute this if the hours worked are not representative, for example during a busy holiday period or due to illness of colleagues.
The reference period: 3 months or longer?
By default, the last three months are examined. However, the court may sometimes apply a longer period.
Example from practice:
An on-call worker claimed to be entitled to an average of 35 hours based on the past three months. The employer pointed out that this was a busy summer period. The court chose a reference period of one year, which showed an average of 28 hours per week.
Balanced Labour Market Act (WAB): offer of fixed hours
Since the introduction of the Balanced Labour Market Act (WAB), the position of on-call workers has been strengthened:
After 12 months, the employer must make an offer within one month for a contract with a fixed number of hours.
That number of hours must be at least equal to the average number of hours worked in the past 12 months.
Example:
An on-call worker worked an average of 20 hours per week for 12 months. The employer must then offer a contract of at least 20 hours per week.
When are you entitled to wages?
You are entitled to wages and a fixed number of hours if:
You have worked for the same employer for 12 months (with breaks of max. 6 months), or;
You have structurally worked more hours than stated in your contract in the past 3 months, and;
There was no temporary additional work due to exceptional circumstances.
Examples from practice
Example 1: A student with a zero-hours contract worked an average of 15 hours per week for 6 months. When his hours dropped to 5 per week, he claimed payment for 15 hours. This was granted.
Example 2: A hospitality employee temporarily worked extra hours due to illness of colleagues. When he wanted to claim more fixed hours, the court rejected this because it was demonstrably temporary additional work.
Example 3: An on-call worker did not receive an offer for a contract with fixed hours after 12 months. With the help of a lawyer, he successfully claimed a contract and back pay.
Checklist for on-call workers
Keep rosters and pay slips as evidence of hours worked.
Look at the average of the last 3 or 12 months.
Check whether your employer has made an offer after 12 months.
Consult an employment law attorney in case of disputes about hours or wages.
FAQ about legal presumption of scope of work
1. What does legal presumption of scope of work mean?
That after 3 months you are entitled to the average number of hours worked as the contractual scope of work.
2. Does this also apply to a zero-hours contract?
Yes, on-call workers with a zero-hours contract can also invoke this.
3. What if my employer disagrees with my calculation?
The employer must demonstrate that your reference period is not representative.
4. Do I always have the right to a permanent contract after 12 months?
The employer must make an offer. Accepting is your choice.
5. Can I claim back pay?
Yes, through the legal presumption of scope of work you can claim wages based on the average hours worked.
Why Arslan Advocaten?
Specialised in employment law and on-call contracts
Guidance with wage claims and disputes about hours
Support in negotiations and legal proceedings
Clear explanation and personal approach