Contract adjustments require action, not a wait-and-see

An employee asks for more hours, fewer hours, different working hours or perhaps a permanent contract. This sounds like an informal request, but if it can be seen as a request within the meaning of the Flexible Working Act (Wfw), there are clear rules attached to it. One is that the employer must respond within the stipulated time limit. A second important condition may be that an employer must provide a justification if the request is rejected. If the employer fails to do so, the court may ‘automatically’ grant the request.

This automatic granting of an employment contract for an indefinite period of time has already been shown in a 2024 ruling by the cantonal judge in Limburg. The employee had requested a permanent contract in writing a few months before the expiry of her fixed-term contract. Since the Transparent and Predictable Terms of Employment Act, such requests are also covered by the Wfw. The employer should have responded to this request within one month in writing, giving reasons. Although the employer had given written notice that the employment contract would not be renewed, no motivation was given to the employee's request. The court therefore ruled that the request had to be granted.

Incidentally, this did not help the employee in question much as she was late in starting her proceedings.

A turnaround?

But then is the soup really always eaten so hot? No it is not necessarily so. See, for example, a (very) recent decision of the North Holland court in this regard. Here, an employee had applied to increase his employment rate from 90 to 100 per cent.  

The only issue here was that this employee was already supernumerary and exempt from work. Thus, the employee's application seemed to have been made with the sole purpose of receiving a higher salary during his exemption from work, or higher severance pay. The court ruled that the Flexible Working Act was not designed for this purpose and that it must have been obvious to the employee that his request would be rejected. Also, the employee had not complained in time. So the absence of a written rejection including motivation does not always mean that the request is automatically granted. 

What should an entrepreneur learn from this? 

• Don't leave requests unanswered. Whether it is for more hours, fewer hours or conversion to an open-ended contract always respond ánd in writing.
• Pay attention to the deadline. There is often a statutory response period to these kinds of requests. In principle, this is one month. Be alert to this and do not let it expire.
• Be clear in your communication. Even if you cannot or will not (yet) comply with the request, indicate clearly and in good time why not.
• Distinguish between loose wishes and serious requests. A loose remark in the corridors is somewhat different from a clear request by e-mail. But as soon as an employee makes a serious request, it is important to respond seriously as well, because it could very well be a Wfw request. 

Have you received a request from an employee to amend the employment contract and are unsure how to deal with it? Feel free to contact one of our employment law specialists: Dennis Oud, Elke Hofman, Tessa Sipkema of Tim van Riel.