17 October 2017

New Dutch government to change rules on dismissals, independent contractors and payrolling

The Dutch coalition agreement, which was presented on 10 October 2017, proposes a number of amendments to Dutch employment and dismissal law that will affect employers, employees and independent contractors alike. Here we outline the most important changes. In addition, De Brauw will be launching a dedicated employment law website that will provide regular updates on the legislative process and interesting new developments in employment law. More information about the new site will follow.

The main takeaways from the employment-related proposals in the coalition agreement are:

  • Dutch dismissal laws will include the possibility of ‘combining’ several partially materialised statutory grounds for termination. This instrument, currently unavailable to Dutch courts, will allow a court to dissolve an employment agreement even where no single statutory dismissal ground has fully materialised. The coalition agreement proposes that the employee be awarded a higher severance payment for a termination based on this ‘cocktail of dismissal grounds’.
  • The way in which the statutory severance payment (the “transition payment”) is calculated will change. This will mainly affect employees with many years of service or who have been employed for less than two years.
  • Rules on using trial periods and fixed-term contracts will change once again.
  • Material changes will be made to the rules for working with independent contractors; different ‘categories’ of independent contractors will be introduced.
  • Payrolling – a specific form of hiring or outsourcing staff – will be more tightly regulated.
  • The period during which salary continues to be paid during illness will be reduced for small businesses (up to 25 employees).
  • A new pension system will be developed.

 

Changes to statutory termination grounds

One of the suggestions included in the coalition agreement is the introduction of a ‘combination’ or ‘cocktail’ of statutory dismissal grounds. Back in 2015, Dutch legislators materially changed the dismissal laws, providing for a fixed number of statutory dismissal grounds that had to be fulfilled in full before an employer could dismiss an employee. Under current law, a combination of the statutory dismissal grounds that have not ‘fully materialised’ cannot lead to a dismissal. For example, in the case of a ‘partly’ disrupted employment relationship with an employee who is also ‘partially’ underperforming and who has engaged in ‘partially’ culpable behaviour, the employer cannot terminate the employment agreement because neither of the three dismissal grounds has ‘fully materialised’. In practice, this results in a relatively large number of court petitions for termination being denied.

The coalition agreement states that an additional statutory dismissal ground will be introduced, allowing for the termination of an employment agreement based on a combination of facts that by themselves are part of different statutory dismissal grounds. In the above example, a future court will have the freedom to allow the dissolution of the employment agreement. The coalition agreement further states that the employee may, in such cases, be eligible to receive a higher severance payment of up to 50% of the statutory transition payment that is currently due in individual cases. This contemplated change will affect one of the most leading arguments underpinning current legislation that ‘not fully materialised’ termination grounds cannot be compensated by granting a higher severance’.

The ultimate effect of the contemplated changes will become clear when an actual proposal is filed for an amendment. Based on the intentions set out in the coalition agreement, we assume that the introduction of the ‘combination’ ground will result in easier, but also more expensive, dismissals.

 

Changes to the calculation of the transition payment

As of 2015, an employee with an employment record of at least 24 months is entitled to the statutory severance payment (known as the transition payment) upon the termination of the employment agreement, save for specific circumstances. The calculation of the transition payment was rather extensive and included a higher accrual of severance entitlements after ten years of employment.

The coalition agreement proposes various changes to the calculation of the transition payment, the most important being:

  • All employees will be entitled to the transition payment from the first day of employment instead of only after two years of service.
  • The calculation of the transition payment will be simplified – and the outcome will be lower – as each year of employment will have the same value for the accrual of the transition payment. Currently, years of service after the tenth year have a higher value in the transition payment than the first ten years, as these subsequent years each count for half a gross monthly salary, while the first ten years of service each only count for one third of a gross monthly salary. It is proposed that in future, each year of service will accrue one third of the employee’s gross monthly salary as a transition payment, including those after the tenth year. This change will make transition payments lower for employees who have accrued many years of service.
  • The employer will be able to deduct from the transition payment the costs of internal training and education incurred to prepare the employee move to another position within the company. Currently, the possibilities to do so are very limited.
  • Certain employers (mostly small businesses) will be compensated for transition payments made to employees who have been ill for more than two consecutive years.

 

Trial periods and fixed-term contracts

One of the pillars of the legislative changes in 2015 was making temporary contracts more unattractive to employers. For example, under these new rules no more than three consecutive fixed-term contracts can be offered within two years. After two years, or when a fourth contract is entered into, the fixed-term contract automatically converts to a long-term contract, unless a minimum period of six months has lapsed between two contracts.

The coalition agreement proposes two important changes to these arrangements. First, the two-year term will change to a three-year term, allowing for three consecutive fixed-term contracts in three years. In addition, the possibilities to deviate from the six-month ‘gap’ in a collective labour agreement will be expanded. Currently, this deviation can only be used for certain seasonal work.

In addition to the rule changes for fixed-term contracts, the rules relating to the trial period will change. If an employer offers a long-term contract at the start of employment, a probationary period of up to five months may be agreed. Currently, the maximum trial period is two months. If an employer offers a long fixed-term contract (i.e. longer than two years) a trial period of three months may be agreed.

 

Independent contractors

Independent contractors have been the subject of debate for many years. The question whether ‘independent contractors’ or ‘self-employed workers’ are indeed self-employed or should rather be seen as “pseudo self-employed” workers who are in fact working under a contract of employment in the sense of article 7:610 Dutch Civil Code, has even led to various court cases.

In 2016, the Act on Deregulating Assessment Working Relationship was introduced. This was intended to resolve certain fundamental issues by requiring parties to work on the basis of template contracts published by the Dutch tax authorities to ensure the tax position of an independent contractor. In practice – as expected by many professionals – the use of pre-approved template contracts did not work and this legislation was never fully enforced.

The coalition agreement states that this legislation will be fully replaced by a new regime that effectively introduces three specific ‘categories’ of independent contractors, depending on the contractor’s remuneration.

  • First category: independent contractors earning up to 125% of the applicable minimum wage (or in the case of a collective labour agreement, the lowest pay scale of that collective labour agreement).
    If these contractors earn only between EUR 15 and 18 per hour, have a long-term contract, or perform work that may be considered to be part of the normal business activities, they will be deemed to be employees.
  • Second category: contractors that earn more than EUR 15 to 18 per hour, but less than EUR 75 per hour.
    For this group, an ‘independent contractor statement’ is introduced. By completing an online questionnaire, companies can obtain certainty on the tax position of the contractor. This system is similar to that of the UK. To be able to successfully implement this system, the coalition agreement states that the existing requirement of a ‘relationship of authority’ when determining whether a contractor should be deemed an employee will be changed. There will be a stronger focus on material aspects of authority than on the formal aspects such as the requirement to be present at certain times. These changes may result in a change in the qualification of the relationship in certain professions.
  • Third category: contractors who are paid EUR 75 or more per hour and work for a short period of time (less than one year) or who perform tasks not considered to be part of normal business activities.
    This group will have an opportunity to ‘opt out’ of applicability of wage taxed and social security premiums.

In addition, the coalition agreement states that the new government will explore the possibility of introducing a new specific type of agreement to the Dutch Civil Code known as the ‘business owner agreement’.

 

Payrolling

Payrolling has been a growing form of employment over the last few years. Payroll companies hire employees directly and second these employees to the client, who is responsible for recruiting the candidate and will be the actual employer throughout the period of employment. Certain scholars raised serious concerns about this form of employment. However, the Dutch Supreme Court’s has ended all uncertainty as to how payrolling should be qualified, by qualifying it as a form of temporary agency work, and debate on the topic has died down as a result. As a type of temporary agency worker, a payroll employee has less protection in the case of a chain of contracts as mentioned above, and has less protection against dismissal.

The new government intends to propose a new law that excludes payrolling from the applicability of the ‘flexible’ legal regime for temporary agency workers. In addition, the new government is contemplating offering payroll workers the same terms of employment as regular employees.

 

Continued payment during illness

Currently, employers are required to continue to pay at least 70% of salary (up to a maximum amount) during an employee’s first 104 weeks of illness. During this period, the employer may not (in principle) terminate the employment agreement. This continued payment requirement is considered to be very burdensome, especially for smaller businesses. The coalition agreement now states that small companies (employing up to 25 employees) will only be required to continue salary payments during the first 52 weeks. The employee will continue to have protection against dismissal during the full 104 weeks, but the UWV will take over the obligation to pay wages to the employee.

 

New pension system

The pension dialogue between the government, the pensions sector, and the public has shown that there is broad support for reforming the Dutch pension system. The new government will continue the reform efforts. The coalition agreement shows that the new government particularly wants to further explore the possibility of personal pension assets, while retaining collective risk sharing. The new government also wants to abolish the average pension contribution system. It is expected that the Social and Economic Council (SER) will publish advice about this specific possibility in the near future.

The government will, in close cooperation with social partners, design the new pension contract and the transition towards it, and aims to have an outline agreement ready at the beginning of 2018. Currently, the legislative process is expected to be finalised in 2020.

 

Updates on the new website

The De Brauw employment team will of course follow the plans of the new government closely. In order to keep you updated on all interesting developments, a special website will be launched soon. To be continued!