As an employee, you may be faced with situations in which you structurally work more hours than stated in your employment contract. This can happen if, for example, you work on the basis of an on-call contract, but are increasingly called to work. In that case, there may be a legal presumption of scope of employment. This legal presumption allows you to hold the employer accountable for the actual hours you work, even if these hours are not recorded in your contract.
In this extensive blog we explain what the
legal presumption of scope of employment, how it works and what rights and obligations come with it. This article is intended to inform both employees and employers about this important aspect of employment law.
It is therefore important for both employees and employers to keep a close eye on the legal presumption of employment. Suppose you start with a zero-hours contract, but are then structurally employed for, for example, 40 hours every week. After three months of working under these conditions, a zero-hours contract no longer applies, but the right to an employment contract for 40 hours per week arises. The legal presumption then ensures that the hours actually worked become leading, and thus offers protection to employees who structurally work more than agreed.
What is the legal presumption of employment?
The legal presumption of scope of employment is a legal principle that protects employees who structurally work more than stated in their employment contract. If you have worked more hours in the past three months than stated in your contract, you are entitled to be paid the same number of hours, also in the future. This may apply to various
types of contracts, such as on-call contracts (zero-hour contracts), min/max contracts, but also regular employment contracts.
When is there a legal presumption of employment?
There is a legal presumption of employment if you have consistently worked more hours than agreed over a period of three months. This means that, for example, if your contract states that you were only supposed to work 10 hours per week, but you have worked an average of 20 hours per week over the past three months, you are entitled to payment for those 20 hours per week.
The employer must then continue to pay you based on the average number of hours worked over the past three months, even if there is temporarily less work. This also applies if you are called up less than before.
Please note: The reference period of three months may not be an exceptional period in which you have temporarily performed additional work, for example due to the illness of colleagues or holiday pressure. This must be a representative period in which there is a fixed working pattern.
Example situation
Suppose you have a zero-hours contract and have been called up for 25 hours every week for the past three months. Your employer decides to call you less in the following month due to a decrease in work, but you are still entitled to be paid for 25 hours per week. This is due to the legal presumption of employment, which is based on the average number of hours worked in the past three months.
Your rights and next steps
- You can invoke the legal presumption of employment by submitting a request to your employer to adjust the number of contract hours to the average of the past three months.
- Always check whether specific agreements about additional work are included in your employment contract or the applicable collective labor agreement.
- Is your employer having difficulty adjusting the scope of work or refusing the request? Please contact an employment law lawyer. A lawyer can assess whether going to court makes sense, or guide you through negotiations with your employer without court intervention.
The legal presumption of scope of work puts you in a stronger position as an employee and prevents you from being structurally underpaid for the work you actually perform.
To whom does the legal presumption of scope of employment apply?
This legal presumption applies to all employees, including temporary and on-call workers. It applies regardless of the form of the contract, whether you have an employment contract for a fixed period, an indefinite period, or an on-call contract. The only requirement is that there must be a structural employment pattern over a period of three months.
In addition, it is important to know that if you are
temporary worker works, the hours that you have worked for the same employer under different employment contracts also count when determining the scope of employment.
The reference period: How does this work?
The reference period is the three-month period in which your working hours are counted to calculate the average working hours. This should give a representative picture of your working pattern. For example, if you worked more hours than normal during a peak period, for example in the summer, then this period may not be representative. In that case, a longer reference period can be used to obtain a more realistic picture of the workforce.
According to the law, if your employment contract has lasted at least three months, it is presumed that the number of hours worked per month is equal to the average number of hours worked per month in the past three months. This means, for example, that if you, as an on-call worker with a zero-hours contract, have worked an average of 30 hours per month in the past three months, you are entitled to payment for these 30 hours per month. This prevents you from structurally working more than stated in your contract, without receiving appropriate remuneration.
Please note: the point is that the average over the three months gives a realistic picture of your actual commitment. If the past three months are not representative due to exceptional circumstances (such as temporary crowds or illness of colleagues), the reference period can be adjusted to reflect your normal working pattern.
When does the legal presumption of scope of employment not apply?
The legal presumption of scope of employment does not apply in all cases. For example:
- Temporary additional work: If you have temporarily worked more hours due to exceptional circumstances, such as filling in for a sick colleague, the employer can rely on the temporary nature of the additional work. However, the employer must be able to demonstrate this.
- Peak Times: When you work peak hours during seasonal work, for example in the summer or during public holidays, the reference period can be adjusted to give a more realistic picture of your average hours.
What can an employer do if he does not agree with the legal presumption?
An employer can try to demonstrate that the hours worked in the past three months are not representative of the normal working hours. However, the burden of proof lies with the employer to demonstrate that there was temporary additional work or special circumstances that make the legal presumption not applicable.
How is the average number of hours worked calculated for subsequent contracts?
If you have had multiple contracts with the same employer with intervals of up to six months, these periods are added together to determine the average employment. The intervening periods in which you did not work for the employer do not count.
For example: suppose you have worked as an on-call worker for six months at a catering establishment, then do no work for four months and then start working for the same employer again for six months. To calculate the average number of hours worked, only the months worked are taken together—so the intervening four months do not count. Your employer then bases the offer for fixed hours on the average over the twelve months that you have actually worked.
In this way, the law ensures that your efforts are added up and your rights are retained, even in the event of interruptions.
When does uncertainty arise about the number of hours to which an on-call worker is entitled?
Uncertainty about the right to hours usually arises when an on-call worker, for example in the catering industry, structurally works more for a longer period of time than is contractually agreed. Consider situations in which you are regularly scheduled for more hours than stated in your employment contract. This can become a problem if, for example, you become ill and it is not immediately clear how many hours your wages must continue to be paid. Even if work is reduced or schedules change, it may be unclear what you can claim as an on-call worker, especially when the average number of hours worked deviates significantly from what was agreed on paper. In such cases, the legal presumption provides guidance to determine how many hours of work and wages you are entitled to.
When must an employer make an offer for a fixed number of hours?
Due to changes in the Balanced Labor Market Act (WAB), the rights of on-call workers have been significantly expanded. An important consequence of this is that your employer is obliged to make an offer for a fixed number of hours in writing or by e-mail within one month after 12 months of work - regardless of the type of on-call contract. This fixed number of hours must be at least equal to the average that you have actually worked in the past twelve months.
Please note: if you have had multiple
temporary contracts with the same employer, and the interruptions between these contracts did not last longer than six months, those periods will be added together. Suppose you worked at a restaurant for six months, then took a four-month break, and then returned for another six months - then the months worked are added together and the mandatory supply scheme applies after this second working period.
After receiving the proposal from your employer, you will of course have one month to consider the offer and accept or refuse it. The aim is to provide more clarity and certainty to employees with on-call contracts.
What are your rights as an employee?
If you believe that there is a legal presumption of employment, you can report this to your employer. Your employer is then obliged to adjust your working hours based on the average hours you have worked in the past three months. This means that from now on you must be paid for the average working hours, even if you are called up less.
It is important to note that the legal presumption of employment constitutes a minimum. You are therefore entitled to payment for the average hours, but you can always work more hours if this is agreed with your employer.
how does the process proceed?
If you, as an on-call worker, have structurally worked more hours than stated in your employment contract, you can, on the basis of the legal presumption, enter into a contract with a
permanent enforce the scope of work. Your employer may try to refute this suspicion, for example by demonstrating that the period in question is not representative. Consider situations such as a seasonal peak (for example in the summer months at catering establishments) or temporary extension of hours because several colleagues were ill or on holiday. The burden of proof for this lies with the employer.
If the employer can convincingly demonstrate that there was only temporary additional work or special circumstances, a judge may decide that the legal presumption does not apply and reject your request. In all other cases you are entitled to the adjusted scope of work.
What will change for on-call workers as a result of the Balanced Labor Market Act?
With the introduction of the Balanced Labor Market Act (WAB), the position of on-call workers has been significantly strengthened. Employers are now obliged to make on-call workers who have been employed for 12 months a written or digital offer for a fixed number of hours within one month. This offer must be at least equal to the average number of hours you actually worked in the past year.
It does not matter whether your contracts follow each other directly: if there is an interruption of up to six months between two contracts, the periods are added together to arrive at these twelve months. Suppose you work in the catering industry for six months, are then out of service for four months and then start again for six months with the same employer. In that case, after the second six-month period, your employer must make you an offer for the average number of hours over that total twelve months.
You will have at least one month to consider this proposal and whether or not to accept it. This creates more certainty about your salary and working hours, and you are better protected against uncertainty surrounding changing schedules and calls.
What should you do if your employer does not cooperate?
If your employer is not prepared to adjust your scope of work based on legal presumption, you can take legal action. At Arslan Advocaten we are happy to help you enforce your rights. Our employment law lawyers have extensive experience with labor disputes and can guide you through the process of obtaining the correct scope of employment and associated payment.
Contact Arslan Advocaten
Do you have questions about the legal presumption of employment, your employment contract or other employment law issues? Our specialized employment law lawyers are ready to assist you. Contact us for a no-obligation consultation and discover how we can help you get what you are entitled to.
