The Netherlands: The Flexibility of an On-call Contract

According to a recent decision of the Rotterdam District Court in interim relief proceedings, even though an on-call contract can be flexible, employers have to be aware of the rules that protect employees. In this ASAP we summarize the rules on on-call contracts and discuss the implications of the recent decision.

On-call contracts

An on-call contract is a special form of employment contract in which the number of working hours is not predetermined and employees are not entitled to wages if they are not called on. The purpose of on-call contracts is to give employers flexibility and reduce their employment costs burden by enabling them to adjust to fluctuations in workload, for example due to sickness or seasonal work. After 12 months, the employer must offer the on-call employee a fixed number of working hours equal to the average number of hours worked in the previous 12 months.

Presumption of working hours

In addition to this obligation to offer fixed hours, Dutch employment law includes a statutory presumption of working hours. This means that once an employee has been employed for at least three months, their working hours are presumed to be equal to the average number of hours worked per month during the previous three months. This rule is designed to protect employees from continued uncertainty about the extent of their employment.

Supreme Court

The Supreme Court of the Netherlands recently ruled that both rules may coexist. Even if an employee refuses an offer of permanent employment, they may rely on the statutory presumption of working hours with retroactive effect.

Rotterdam District Court

The interim relief judge of the Rotterdam District Court ruled that an employee was not entitled to reinstatement based on the presumption of working hours. The reason was that the employment had lasted for less than three months when the employer decided to no longer call on the employee. Although the employee had worked 30, 23.5, and 25 hours, respectively, in a period just shy of three months (12 weeks), the court ruled that employees have a claim under the statutory presumption of working hours only once they have actually carried out work over a period of three months. What is striking is that the employment contract was more than three months old when the employee summoned the employer. Nonetheless, the court based its decision on the period actually worked by the employee rather than the length of the employment contract. This seems at odds with the Supreme Court's premise that the presumption of working hours is in fact an instrument designed to protect employees.

These decisions show that although on-call contracts are often less flexible in practice than is often thought, a greater degree of flexibility does exist in the first three months.

*Justin Conijn is a Junior Associate with Littler Netherlands.