News

You have worked on your business for years and built a competitive edge. Then an employee sends business emails to his private email address. Innocent on the face of it, but what if he goes to the competition with that information? Fortunately, you have a confidentiality clause. But is it foolproof?

A recent ruling by the Zeeland-West Brabant District Court shows that a faulty clause can put an employer at a disadvantage. In this case, an employer wanted to fine an employee for forwarding e-mails. However, the court ruled that the clause only spoke of ‘third parties’ and did not include a private mailbox. The IT Policy also offered no salvation, as it did not explicitly refer to the confidentiality clause. Consequence: the employee went free.

How do you prevent this?

1. Clear wording - Explicitly define what is covered by confidentiality and prohibit storing, copying or forwarding information to the private e-mail address of employee or other third parties not authorised to receive it.
2. Consistent policy - Make the confidentiality clause and IT Policy consistent and refer to each other.
3. Sanctions and enforcement - Include and strictly enforce penalty provisions.
4. Regular review - Review and update the clause periodically.

Conclusion

A confidentiality clause is a living document that should grow with your business. Make sure you have clear rules, a consistent policy and effective enforcement to avoid legal problems.

Do you have questions about whether your clause is watertight? If so, please contact Dennis Oud, Elke Hofman-Bijvank or Tim van Riel.

You can read the ruling for yourself here

Our sponsored martial artist Dave Kienz had a successful trip to New York. On Saturday, he took on an American champion in Rochester, NY, in a prestigious 3x3-minute ‘Super Fight’. Dave dominated the match from the start and managed to win within the first round by scoring a wazari twice with rakish kicks to his opponent's liver and head.

In addition to his impressive victory, Dave was awarded the award for most technical fighter at the end of the evening, a wonderful recognition of his fighting style and skills.

After a brief exploration of the city of New York, Dave is now back home and focusing on the next challenges. Two major tournaments are scheduled in the coming months:

📅 6 April - Western European Championships
📅 8-10 May - World Championships

Dave is training very hard to climb the podium here too. We will continue to follow him and wish him good luck in his preparation! 💪🥋

In its ruling of 5 March 2025, the Administrative Jurisdiction Division of the Council of State clarified the relationship between its jurisprudence on the principle duty of enforcement and its jurisprudence on the application of the principle of proportionality. 

First, a brief explanation of both definitions. The duty of principle to enforce means that, in principle, the administrative body must always enforce if it becomes aware of a violation. This duty of principle may be at odds with the principle of proportionality, which means that the consequences of a decision must not be disproportionate for interested parties in relation to the objective to be served. 

The Division has ruled on that ratio on several occasions. In its ruling of 3 March 2025, it clarified its line in doing so. It stated that, in determining whether enforcement action could be waived, it should be assessed whether enforcement action would be disproportionate. This should draw on the so-called Harderwijk ruling from 2022, which implies that the administrative judge must assess whether the decision is appropriate and necessary to serve desired purpose, and then determine whether the decision is balanced in the specific circumstances of the case. 

The Division does emphasise that enforcement serves the public interest and must therefore remain paramount. Enforcing the law is only disproportionate if the circumstances in the specific case are so significant that the public interest must prevail. Those circumstances then take precedence over the public interest. 

In short, enforcement is therefore the rule, but in the event that the decision is not suitable, necessary and balanced to serve the desired purpose and there are therefore circumstances that must outweigh serving the public interest, the principle of proportionality precludes enforcement. 

You can read the State Council ruling here.

Early this morning, we organised another inspiring breakfast session at Golfclub Capelle. With a large turnout and while enjoying a delicious breakfast buffet, colleagues Dennis Oud and Elke Hofman-Bijvank updated our clients on Labour Law. 

Besides looking back at the first weeks of ZZP since 1 January 2025, they also gave our clients insight into what is on the legislative agenda. A number of key topics were discussed, such as: 

• Law on more security for flex workers 
• Law on retaining staff in times of crisis 
• Competitive Trading (Modernisation) Act 
• Reintegration Obligations Second Year of Illness Act 
• More security for flexworkers Act 
• Paid bereavement leave act

It was an interactive session, where many questions were asked and insights shared. Good to see how engaged everyone was. 

Thanks to all attendees for coming and also our thanks to Restaurant Mulligan for taking such good care of us!

Many activities are subject to a permit requirement. This means that as a citizen or company, you must first submit a permit application to the administrative body and get the permit granted before you can carry out the activity in question. Normally, a permit is applied for by filling in an (electronic) application form. However, it sometimes happens that citizens or companies take a different approach. 

Such was the case in the Limburg District Court's ruling of 17 January 2025. Here, the plaintiff had submitted a permit application by e-mail. In the e-mail, he indicated that he would like to hear if anything was missing from his application, and that he would otherwise like to come and bring the form to the municipality. According to the college, this was not a permit application. The court does not follow this view. After all, this was a request by an interested party to make a decision. The fact that the permit application was flawed does not alter this. 

The board should therefore have made a decision on the application within eight weeks, ruling that the application did not meet the submission requirements and giving the claimant the opportunity to rectify the defect (as yet). Since the college failed to do so and did not decide on the plaintiff's permit application within the decision period, the plaintiff's appeal for failure to decide on time was upheld. 

The board is ordered to still take a decision, under penalty of forfeiting penalties. 

We can conclude from this ruling that it is possible to submit a permit application in a less common way, or at least that such a permit application must be considered by the administrative body. So always be aware of your rights and act accordingly. 

Do you have a question about a permit application you need to submit, or are you wondering whether you should submit a permit application at all? If so, please contact Gerard van der Wende or Fleur Huisman. 

You can read the ruling here.

A number of preliminary questions were raised by the Court of Appeal in the Uber case. On Friday 21 February 2025, the Supreme Court issued an important ruling in which the Supreme Court answered these questions. 

What did the Supreme Court consider? 

The Supreme Court had to assess whether the entrepreneurship of a self-employed person could be decisive in determining whether an employment contract existed. The Supreme Court also wanted an answer to the question whether two people, doing the same work for the same client, could still be judged differently if one person is clearly an entrepreneur and the other is not.

What does the Supreme Court say? 

• External entrepreneurship counts as heavily as all other Deliveroo viewpoints. So there is no ranking.
• Two people doing the same work can still be judged differently: one can be self-employed and the other employee.
• Entrepreneurship is not only considered within the job, but must also be viewed more broadly (for example, whether someone has multiple clients or runs their own business). Circumstances outside the working relationship are thus also relevant. 

What does this mean for client? 

Clients should pay close attention to how they work with self-employed workers. It is not enough to put in a contract that someone is a self-employed person, all the circumstances of the case count. If someone clearly behaves as an entrepreneur (multiple clients, own business operations, entrepreneurial risk), he or she is more likely to be considered self-employed as well.

What can a client do? 

✔ Check your contracts: Make sure agreements with self-employed workers match the way work is done in practice.
✔ Make clear agreements: Lay down clearly how the self-employed person behaves as an entrepreneur. Consider own advertising, registration with the Chamber of Commerce and soliciting clients independently.
✔ Keep up to date: Legislation and case-law on labour relations change quickly. Keep an eye on this to avoid unpleasant surprises.

By properly recording agreements, you limit the risk that a ‘zzp'er’ will be classified as an employee after all - with all the associated obligations.

Do you have any questions? If so, please contact Dennis Oud, Tessa Sipkema, Elke Hofman-Bijvank of met Tim van Riel. 

You can read the ruling here.