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What's different now?

Previously, the law was structured as follows: there were arguments in favour of employment (the so-called W elements), arguments in favour of self-employment (the Z elements), and only in the event of a tie were the entrepreneurship factors (the OP elements) taken into account.

But then the Uber ruling came along, which ruled that this “ranking” of factors was not actually the intention. As a result, the legislator had to go back to the drawing board.

And now?

Now, the above test has been replaced by a W test on the one hand and a Z-contract test on the other. This means that a “tie” is no longer required to determine whether entrepreneurship is involved. All circumstances of the case are taken into account immediately.

The explanatory notes to the Act do describe an interesting case for practical application. If you replace a sick employee as an interim manager, you are autonomous in your work, but if there is some degree of guidance regarding the content or organisation of your work if “production” falls behind, do you adhere to internal guidelines and rules and are performance reviews held with you? According to the new rules, you then run the risk of being considered to have an employment contract, even if you work independently, for multiple clients per year and you run entrepreneurial risk. After the summer, the bill will be debated in the House of Representatives and then it will have to go to the Senate. It remains to be seen whether this bill will be passed. Especially now that a number of MPs are working on another bill, the “Self-Employed Persons Act”, which is also intended to remove the ambiguities in practice regarding self-employed persons versus employees.
 
Are you unsure about using self-employed persons in your company? Or would you like to know more about the legal risks? Please contact Dennis Oud, Tim van Riel, Elke Hofman or Tessa Sipkema.

An employee who is suspected of a serious criminal offence is not always obliged by law to report this to their employer. However, sometimes the facts are so serious that a good employee can be expected to do so on their own initiative. This is certainly the case if the employer has already made it clear on several occasions that such information is important to them.

This has been confirmed once again by a recent ruling, in which an employer received an anonymous tip that an employee had committed sexual abuse against minors. It later transpired that criminal proceedings had indeed been brought against him. The employee was ultimately convicted of sexual abuse against minors, committed during a previous position as a care worker for mentally disabled people at another care institution. The criminal court also imposed a three-year professional ban on him. At his new employer, he was again working as a care worker for vulnerable clients. Nevertheless, the employee claimed that he was not required to report this information. His employer then dismissed him with immediate effect.

The court ruled that the employee had not acted as a good employee by keeping this information to himself and that he could be seriously blamed for this. The summary dismissal was upheld.

Advice to employers: ensure that your employment contract or staff handbook includes a provision requiring employees to report, among other things, any ongoing criminal proceedings (with a potential impact on their work). This will ensure that employees are obliged to report such matters, regardless of whether they are serious enough to warrant summary dismissal.

An interesting detail from the ruling: although the employee could be dismissed with immediate effect, the employer was required to provide a positive reference, on pain of a penalty payment. The employee had requested this, and the employer had not contested this during the hearing. Well... what do you write in that reference?

‘Mr X was employed by us until [date]. He was very determined and demonstrated a strong sense of... confidentiality.’?

Do you have any questions about the wording of provisions in an employment contract or staff regulations? Please contact Dennis Oud, Elke Hofman, Tim van Riel or Tessa Sipkema.

You can read the ruling here.

On 24 June 2025, the Arnhem-Leeuwarden Court of Appeal ruled in a long-running dispute between Picnic and Flink, among others, on the one hand and the trade unions on the other. The outcome is that, contrary to Picnic and Flink's opinion, they are considered to be an online supermarket and not an e-commerce company.

What happened?

Picnic trolleys driving through the streets have gradually become a familiar sight, but what kind of company is it really? Picnic claims that its business activities are fundamentally different from those of physical supermarkets and that it is therefore not required to apply the collective labour agreement. The emphasis is said to be on logistics rather than on operating a supermarket. The trade unions argue the opposite, pointing out that food has always been delivered to homes and citing examples such as Coop, Spar and Plus.

What is the consequence?

In short, the court of appeal agreed with the reasoning of the trade unions and ruled that Picnic and Flink fall within the scope of the collective labour agreement for supermarkets (the “Food Industry” collective labour agreement). As a result, many current and former employees are now entitled to wage claims, which could represent a significant expense for Picnic.

The fact that they had concluded their own e-commerce collective agreement with a few trade unions does not alter this.

Incidentally, this case only concerns the period between 13 September 2022 and 1 July 2023. During that period, the supermarket collective agreement was declared generally binding, which means that all employers, including supermarkets that are not members of the employers' organisation involved in the supermarket collective agreement and that fall within its scope, must apply that collective agreement.

Picnic has submitted a request to the ministry to be exempted from the supermarket collective labour agreement. The trade unions hope that the court's ruling will prevent this request from being granted. The previous request for exemption was granted. Will the minister do so again?

What can entrepreneurs learn from this?

Any entrepreneur who has doubts about the applicability of a collective agreement would be wise to have a collective agreement scope investigation carried out. Unintentionally, business activities may still fall under a (different) generally binding collective agreement, with all the financial consequences that entails.

Do you have questions about the applicability of a collective labour agreement to your company? Please contact Dennis Oud, Tim van Riel, Tessa Sipkema or Elke Hofman-Bijvank.

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.

De Haij & Van der Wende Advocaten will also be a sponsor of ZVH Volleyball Men's 1 for the 2025-2026 season.

The sponsorship contract was signed this morning by Dennis Oud on behalf of De Haij & Van der Wende Advocaten, together with Ralph Nenk (Scherp Verpakkingen) and Gert Zoet (former CSU director and member of the Men's 1 sponsorship committee).

With this extension, De Haij & Van der Wende supports the sporting ambitions of ZVH's first men's team in the Eredivisie.

We wish the team a successful season! 👊

Please note that this ruling is governed by the old law, which applied until 1 January 2024!

Padel courts are a hot topic in case law these days. However, where it normally deals with noise pollution, the ruling that will be discussed in this blog looks at something completely different.

In this case, in brief, the Division had to assess whether the municipal council of the municipality of Laren had rightly used the extensive preparatory procedure to (re)assess the permit application for the realisation of four padel courts and the installation of a fence.

The applicant had submitted a permit application to build four padel courts and a fence on her plot. This permit application had initially been granted through the regular preparation procedure. An objection was lodged against this decision, after which the college revoked the permit and decided to follow the extensive preparation procedure after all. The applicant appealed against this decision. The court ruled that the extensive procedure had been used unjustly, because although there was a conflict with the zoning plan, that conflict only concerned the glass walls around the padel courts, making it a minor case and the regular procedure should have been followed.

The Division then had to assess whether the court's judgment was correct. It confirmed that the height of the glass walls violated the zoning plan and therefore required an environmental permit to deviate from the zoning plan. Unlike the court, however, the Division ruled that the paving and the enclosure, including glass walls, were functionally connected to each other, as a result of which the minor cases regulation did not apply and the college was right to follow the extensive preparation procedure.

This ruling shows that it does matter which preparatory procedure the administrative body uses to assess a permit application. If the wrong procedure is followed, this may mean that the permit application must be reassessed.

You can read the decision of the Council of State here.