From zero hours to transition payments: two wins for the Supreme Court

This week, the Supreme Court published two interesting judgments that are important for employers. Both cases focus on the protection of employees, but the judgments provide clear guidance on the extent of that protection and where the limits lie.

Exclusion of previous years of service from transition allowance

In the Deme Offshore case, the Supreme Court ruled that previous employment relationships that were terminated by the employee themselves do not count towards the calculation of the transition allowance in the event of subsequent dismissal. The statutory ‘aggregation rule’ only applies if the initiative to terminate the previous employment relationship lay with the employer. This is important because the law can also be interpreted differently, namely that if the employment contract is terminated and re-entered within a period of six months, the employment relationship must always be regarded as a continuous employment relationship and therefore also counts towards the calculation of the transition allowance. The Supreme Court therefore ruled that this is not the case.

Invoking working hours despite rejecting an offer

In the Taxiwerq case, the Supreme Court ruled that an employee can also invoke the legal presumption of working hours (Section 7:610b of the Dutch Civil Code) with retroactive effect, even if he has previously rejected the legally required offer of fixed hours. The rules in Articles 7:628a and 7:610b of the Dutch Civil Code are separate from each other, and the protection afforded by the legal presumption therefore remains in force.

What can employers learn from this?

• Bear in mind that not every year of service counts toward the transition payment, particularly if the employee has previously resigned.
• An employee who refuses an offer of fixed hours may still claim wages (for the same period) based on actual hours worked. Therefore, ensure careful communication and record-keeping, and try to keep the flexible “zero-hour” pool as low as possible.   

If you have any questions about the ruling, please contact Tessa Sipkema, Elke Hofman, or Dennis Oud.

 You can read the full judgments here:

Deme Offshore judgment

Taxiwerq judgment