Successive Employers and Temp Worker Rights: What You Need to Know

Working with temporary workers is common in the Netherlands. Problems often arise when a temporary worker switches to another employer or is employed directly by the client. In such situations the question arises: do previous years of service count and what rights does the employee have?

In this article we explain this clearly for both employers and employees.

What is a successor employer?

A successor employer is a new employer for which the employee continues to do the same or comparable work. This happens, for example, when:

• a Temporary worker switches to another employment agency for the same assignment;

• a temporary worker is employed by the client itself;

• an employee within a group changes companies, but continues to do the same work.

In these cases, the new employer can legally be seen as a successor.

Difference between transfer of undertaking and subsequent employership

Transfer of undertaking

In the event of a transfer of company, employees automatically move to the new employer. Consider a merger or company takeover. All employment conditions remain intact. The service period also continues as normal.

Successive employership without takeover

There is no company takeover, but the work actually remains the same. The law then looks at the practice, not at the name of the employer. If the duties remain the same, previous service often counts.

Why the termination of the previous contract is important

The way the previous contract ended plays a major role.

Termination by mutual consent

Has the old contract been terminated with the consent of both parties? Then a new temporary contract cannot automatically end. Cancellation is then required.

Cancellation or dissolution

Has the contract been terminated via the UWV or the subdistrict court? Then a new temporary contract may expire by operation of law.

These rules prevent abuse of temporary contracts.

Transferring employees within a group

Subsequent employership can also occur within a group. Does an employee change companies but the work remains the same? Then the judge mainly looks at the factual situation.

The legal construction is less important than the practice.

What does this mean for temporary workers?

Does a temporary worker work directly for the client? Then the period through the employment agency often counts. This can lead to:

• faster right to a permanent contract;

• continuous dismissal protection;

• counting previous contracts in the chain arrangement.

Practical examples

• An employee first works directly for employer A, then via a temporary employment agency and then directly for A again. These periods add up.

• A seconded employee will start working for the client within six months. Even then, the previous period usually counts.

Note interruptions

Is there more than six months between two employment contracts? Then the chain starts again. Previous years of service then no longer count.

This period is crucial when determining rights to a permanent contract.

Legal framework: chain regulation

The rules are in Article 7:668a of the Dutch Civil Code. In short:

• After three temporary contracts or

• After three years of working for the same or subsequent employer

there is a right to a permanent contract, unless an exception applies.

Dismissal protection for subsequent contracts

Has an employee first had a permanent contract and then followed up with a temporary contract with a subsequent employer within six months? Then the protection against dismissal continues to apply. The employer then needs permission again from the UWV or the subdistrict court.

Ways in which an employment contract can end

An employment contract can be terminated by, among other things:

• expiry of a temporary contract;

• termination by mutual consent;

• summary dismissal;

• cancellation with or without permission from the UWV;

• dissolution by the subdistrict court judge;

• death of the employee.

Every situation has its own rules and consequences.

What does this mean for employers?

Employers must be alert to previous employment relationships. Employees may become entitled to a permanent contract sooner than expected. Good file knowledge prevents legal risks.

What does this mean for employees?

It is important for temporary workers to know that accrued rights do not simply disappear. Previous contracts can count towards:

• contract duration;

• dismissal protection;

• right to a permanent contract.

Social plan and outplacement

In the event of dismissal due to reorganization a social plan may apply. This often includes agreements about:

• fees;

• guidance towards new work;

• outplacement programs.

Outplacement helps employees find a new job more quickly and is often part of larger reorganizations.

Practical tips

For employers

• Carefully map out previous employment.

• Be careful with subsequent contracts.

For employees

• Keep track of your employment history.

• Get advice in a timely manner regarding a transfer or new contract.

Conclusion

Successive employership can have major consequences for both employers and temporary workers. The rules are complex, but intended to prevent abuse and protect employees.

Are you unsure about your situation? Expert advice prevents mistakes and unnecessary procedures.