Employee Rights in Netherlands | Boundless EOR (2024)

General Employee Rights in Netherlands

Employment agreement

The employer must provide the employee with a written statement setting out specific terms of the employment along with an employment agreement, which can be verbal or written in any language as long as both parties fully understand the terms. The employee can request a Dutch translation of the employment agreement, which the employer must provide. The written statement must contain:

Name and address of the employer and the employee
The place of work
Employee's job or the nature of the work
Usual working hours
Salary and payment period
Commencement date
Term of the contract, if fixed
Length of the trial period, if applicable
Holiday entitlement
Notice period
Pension, if applicable
Non-compete or non-solicitation clause, if applicable
Whether a Collective Labour Agreement (CAO) applies

An employment agreement may be in the form of a contract signed by both parties, an exchange of letters, or a simple document. A non-competition clause can only be agreed upon in writing, or otherwise will be deemed null and void. References to a non-competition clause in a CLA or in an internal handbook is not binding to the employee. Employees on fix-term contracts cannot agree on a non-competition clause (unless the employer can prove that doing so is necessary). The employee can ask for the restrictive claim to be cancelled or mitigated.

Employees must receive their employment agreement within one month of starting, and should include the following terms and conditions:

Name and address of employer and employee
Place of work
The position and a description of it
Hiring date
Time frame if the contract is limited
Holiday rights
Duration of the notice period
Salary in € and payment intervals
Daily or weekly working hours
Pension rights, if applicable
Benefits
A company or industry-specific Collective Bargaining Agreement, if applicable (WAADI applies to Boundless)

The employer may only amend the employment conditions unilaterally if it has reserved the right to do so in the unilateral amendment clause (included in the employment contract or personnel handbook) and has a substantial reason that overrides the employees' interests. It is complicated to amend employment conditions unilaterally, and existing cases show that Dutch courts exercise great restraint in allowing a unilateral amendment of employment conditions, especially if the change is to employment conditions such as salary.

Flexible and part-time working

Under the Flexible Working Act, employers must allow employees to work part-time or to work flexible hours. The employer can only turn down such a request if there are strong and objective reasons not to permit it.

After six months of employment, employees can request an adjustment of their working hours and workplace (i.e., work from home). If the employer denies this request, the employee can file a new one after a year. Only employers with ten or more employees fall under the scope of the Flexible Working Act.

Further to that the Work wherever you want Act is expected to come into force in 2023. The Act is yet to be passed by the Dutch First Chamber. Under this Act, a request by an employee to work from their place of residence (within the EU) or from another suitable workplace from which work is already habitually performed for the employer, will only be able to be refused by the employer on the grounds of compelling business or service interests.

Payslip

Employers must provide a payslip to their employees, which can be online.

Equal opportunity & pay

The equal treatment legislation prohibits employers from discriminating employees based on gender during recruitment, vocational training or guidance given to employees. The aim is to eradicate any wage differences (including salary, allowances and reimbursem*nt of expenses) between employees doing the same work purely based on their opposing genders. This applies to both individual employment contracts and CLAs. Any provisions that seek to depart from the principle of equal pay are void.

An employee's potential claim against the employer arises the moment their wages are due. The employee is entitled to the difference between the salaries for up to five years in arrears. On top of that, employers may also have to pay a penalty.

Health & Safety

Employees are entitled to a safe and healthy work environment under the Working Conditions Act (ARBO). In work environments with high potential for injury, the employer must provide protective wear free of charge. Employees can claim compensation from the employer for any damage they have experienced such as an injury or psychological stress. The exceptions are if the employer can prove that either they fulfilled their obligations under Dutch legislation or that the employee’s damage is their own doing.

Home Offices

Employers have less responsibility for the working conditions of employees who work from home or different locations (mitigated working conditions). However, employers are obliged to give information and support to location-independent employees.

Employers are required to provide an ergonomic workspace to employees working from home unless that places unreasonable demands on the employer. An example would be if the employee only works from home occasionally or for a brief period. The employer bears the cost of the equipment and setup required to create a decent workplace, including monitor, office chair and keyboard. There are tax benefits available, making it possible for employers to provide equipment tax-free.

Employee Protections in Netherlands

Whistleblower protection

Employees benefit from whistleblower protection in companies with 50 or more employees. Smaller companies that do not have whistleblower procedure in place may notify a supervisor, inspectorate or the House for Whistleblowers.

According to the Whistleblowing Act, an employee can disclose any reasonable suspicion of abuse by their employer or at another company and impacts public interest. Whistleblowers, who did the right thing by reporting misconduct and acted in good faith, cannot be disadvantaged in their legal position.

Companies with 50 or more employees are required to establish a whistleblowing procedure which outlines the following aspects:

How the employer will deal with internal notifications of misconduct by employees
When to suspect a misconduct
Whom they should notify about the misconduct
Ways to treat the information confidentially if the employee requests it
Allow for the employee to consult an adviser in confidence
When to go public with suspicions of abuse
The legal protection of a (potential) whistleblower.

Sexual harassment protection

Employers must have a policy on sexual harassment at the workplace as part of their obligation to provide a safe work environment and prevent employees from suffering damage while performing their working activities.

Protection from discrimination

The Dutch anti-discrimination law covers all aspects of the employment relationship including hiring, terms and conditions of employment, promotion, training and dismissal. Under the Dutch Constitution, all individuals within the Netherlands must be treated equally in comparable cases. Under the equal treatment legislation, discrimination on the grounds of religion, political view, life principles, race, gender, pregnancy, civil status, sexual orientation, disability, nationality, age, type of contract and working hours is prohibited. Employers must have in place a policy to prevent discrimination and any psycho-social burden.

Discrimination includes:

Direct discrimination - treating someone less favourably than others in similar circ*mstances because of a protected characteristic
Indirect discrimination - applying a requirement or condition which puts a group of people of a particular religion, gender, or any other ground at a disadvantage and which cannot be objectively justified. To justify indirect discrimination, the employer must demonstrate they made the distinction for a legitimate purpose not related to the type of discrimination. The applicable criteria must also comply with the demands of proportionality, legitimacy and efficiency. Arguments based exclusively on a financial nature are generally insufficient to acknowledge an objective ground for justification.
Sexual harassment - employees experiencing undesirable sexual approaches, requests for sexual favours or other verbal, non-verbal or physical behaviour of a sexual nature, which violate their dignity or create an intimidating, hostile, humiliating or offensive working environment. Furthermore, treating an individual less favourably because they reject or submit to sexual conduct.

Employers who do not comply with the Working Conditions Act risk getting a compensation claim from the employee and may be fined. The employee can claim that the employer has violated their duty of due care, and they have incurred damage as a result. Furthermore, the employee who feels discriminated against may address the Netherlands Institute for Human Rights and/or initiate court proceedings to claim damages.

Protection against dismissal

See End of Employment section for a more detailed description.

Employees are protected from dismissal following a business transfer, pregnancy, illness, maternity and parental leave, marriage, membership in a trade union or works council, leave based on the Work and Care Act 2001 and not consenting to work on Sundays.

Furthermore, a dismissal following an organisational change such as discontinuation of business activities requires the employer to observe genuine objectivity in selecting employees for redundancy. It is not possible to choose employees for subjective reasons.

Personal information protection

Under the GDPR rules, employers are subject to restrictions when retrieving and disclosing employee data.

Data processing follows established good practices
Data is collected only for specified, explicit and legitimate purposes, and any subsequent processing must not be incompatible with those purposes. Employers should not keep personal data for longer than necessary to fulfil the purpose
The data must always be complete and correct. Also, a requirement of proportionality applies to both the amount of data processed and the registration period.
Employees personal data must only be collected and processed if there is a specific lawful basis. Eligible reasons are if it is necessary for the performance of the contract, a specific legal obligation is in place, or the employer has a legitimate need
Employees must receive statutory information (in the form of a privacy notice) of purposes and legal basis for processing, the recipients of personal data, third country transfers, data subject rights etc.

Protection in case of business transfer

If an employer with 50 or more employees considers transferring all or part of the business, they must first seek advice from the works council.

Employees are automatically transferred and protected from dismissal under a business undertaking. For the Transfer of Undertaking Law to apply, the transferred business must retain its identity.In order for a business transfer to qualify as such, the main activity of the company must remain the same and a transfer of stock alone does not qualify.Employees can only be dismissed for financial, technical or organisational reasons during a business transfer. However, the dismissal procedure will require the employer to observe genuine objectivity in selecting employees for redundancy.

Transferred employees retain their continuous employment period, their existing employment terms and conditions (except old age, disability and survivors' benefits under occupational pension schemes), their right to parental leave, extended notice periods, and severance pay. Separate arrangements apply to pensions.

An employee who agrees to other terms and conditions of employment (even if comparable to the current ones) before or during the transfer can successfully claim that the amendment is invalid. They can claim their former terms and conditions as of the transfer date, or a one-off payment for the differences between the packages. Furthermore, the employee can request a court to terminate the employment contract. In case the new terms and conditions are substantially detrimental to the employee, the court will hold the employer liable and will order them to grant a severance payment.

Employees who are being transferred can refuse it and will be treated as having resigned. If they exercise this right, they will not be entitled to severance compensation. Consequently, they will have no remedy against either employer, except under two circ*mstances:

The employees resign because of a breach of contract by the employer
The transfer would bring a substantial adverse change in their working conditions.

In these circ*mstances, employees will be regarded as dismissed and may be entitled to severance payment(s).

Required Employee Benefits in Netherlands

Unpaid time off

Employees are commonly entitled to unpaid time off when moving house, or for weddings, funerals and GP visits, which however is not mandatory.

Redundancy payment

See End of Employment section for more details.

Employers must compensate employees when terminating their permanent employment contracts or any temporary contract that has lasted for 24 months or more. The compensation is:

1/3 monthly salary per entire year of service from your first working day + the transition payment on the remaining part of the employment contract

The compensation is capped at either €89,000 or a full year's salary if the employee earns more than this amount. If the employer and the employee decide to terminate the contract by mutual consent, the employee can negotiate a severance payment with the employer.

Unemployment funds

See End of Employment section for more details.

Employees who lose their jobs for any reason other than their own doing are eligible for unemployment benefits (WW). The amount is roughly 70% of the employee's previous salary.

To receive the basic unemployment benefits that last three months, the employee must have worked in 26 of the 36 preceding weeks before becoming unemployed. Depending on how many years the employee has worked, they may receive benefits beyond the three months.

Sick leave and work injury leave

During an employee's illness, the employer must pay at least 70% of the employee's most recent gross base salary, for up to 104 weeks.

If an employee gets injured on the job, the employer must report the accident immediately to an SZW inspector. Employers pay into the workers' compensation system, which is governed by the Work and Income According to Labour Capacity Act.

Employers must record all reported accidents as well as those that resulted in three sick leave days or more. They have to include information on the nature of the accident and its date and make all this information available to employees.

Job Security

Setup of a Works council

The employer must set up a work council if employing 50 or more people within the Netherlands. They must then seek the works council's advice in cases of transfer of the company control, termination of or significant change of company activities, major investments, merger or takeover.

If the employer disregards the advice the works council gives them, they can file a complaint against the employer's decision. Furthermore, the works council can contribute to establishing, amending or cancelling various company arrangements about work hours, vacation, job evaluation, remuneration systems, working conditions, privacy, sick leave. The works council is entitled to regular information from the employer and can make proposals to them.