Temporary agency clauses are often included in employment contracts between employment agencies and (temporary) employees. According to the Hague Court of Appeal, such clauses are in contravention of the prohibition on termination of employment during employee illness.
Temporary agency clauses are often included in employment contracts between employment agencies and (temporary) employees. Among other things, such clauses provide for the ipso jure termination of employment contracts when the employee can no longer perform the stipulated work due to incapacity for work. Recently, the question of whether such stipulations should be permitted was put to The Hague Court of Appeal.
Case
The employee was employed in a position in which he had to operate a machine producing paper/cardboard cups. On 24 March 2016, the employee suffered an industrial accident, as a result of which two fingers on his right hand had to be partially amputated.
According to the collective bargaining agreement (CAO) in effect at the time of the accident, the temporary employment agency contract is terminated if the temporary worker can no longer perform the stipulated work due to incapacity for work. The employer took the view that the employment contract was therefore terminated. According to the employee, this clause is in contravention of the prohibition on termination of employment during employee illness.
The Court of Appeal
The Court of Appeal found that the Dutch Civil Code (DCC) provides that, in principle, the employer may not terminate the employment contract during a period of illness. Prior to the entry into force of the Work and Security Act on 1 July 2015, matters were regulated such that the means by which the DCC provision could be derogated from included the stipulations of CAOs. Such means of derogation no longer exists. According to the Court of Appeal, the temporary agency clause providing that the temporary employment agency contract is terminated when the temporary worker can no longer perform the stipulated work as a result of incapacity for work has therefore been in contravention of the prohibition on termination of employment during employee illness since 1 July 2015. This led to the temporary agency clause’s being nullifiable.
In this particular case, the consequence of this was that the employment contract was not terminated on the date of the accident. The employee therefore had a right to continued payment of his salary.
Practical consequences
According to the Hague Court of Appeal, a temporary agency clause resulting in the ipso jure termination of a temporary worker's employment contract in case of illness is in contravention of the law. However, in practice, temporary agency clauses continue to be applied in cases of illness. For example, the Collective Agreement for Temporary Employees 2019-2021 provides that, in case of the temporary worker’s incapacity for work, a temporary employment agency contract with a temporary agency clause is deemed to have been terminated ipso jure with immediate effect at the client’s request, once the sickness has been reported. Based on the Court of Appeal’s decision, this would appear not to be permissible. It now remains to be seen whether other appellate courts will follow this decision or whether the issue will be submitted to the Supreme Court.
If you have any further questions, please do not hesitate to contact Jessica Dietz and/or Marieke Opdam.
