Dutch Supreme Court: secondment provisions may be invoked when a secondment worker calls in sick - By Sander Theunissen
On 17 March 2023, the Dutch Supreme Court definitively resolved the question of whether an employment contract between a secondment agency and a secondment worker may end with immediate effect under the ‘secondment provisions’ if the secondment worker falls ill.
What was this case about
The secondment worker in question was employed by Uitzendbureau Solutions B.V. under two successive secondment employment contracts (phase 1 and phase 2). He worked as a machine operator. The secondment provisions applied to his employment contract. Under those provisions, an employment contract ends if the hiring company is no longer willing or able to hire the secondment worker or if the secondment worker cannot carry out the stipulated work any longer, for example due to sickness.
Having lost two fingers in a workplace accident, the secondment worker called in sick. As a result, his employment contract ended with immediate effect under the secondment provisions. The secondment worker subsequently took the position that his employment contract had not ended and requested continued payment of wages during sickness.
What did the District Court and the Court of Appeal rule?
The Hague District Court denied the secondment worker’s request for continued payment of wages. The Hague Court of Appeal ruled differently. According to the Court of Appeal, the secondment provisions were voidable as they were contrary to the statutory prohibition against termination during sickness. Before the Dutch Employment and Security Act was introduced, it had been possible to deviate from this prohibition by means of a collective bargaining agreement, but that option was removed from the law. For this reason, the secondment provisions were no longer legally valid. The Court of Appeal therefore granted the request for continued payment of wages.
Dutch Supreme Court: secondment provisions upheld
The secondment agency brought an appeal in cassation. According to the Dutch Supreme Court, the Court of Appeal was guilty of one crucial misconception. The statutory prohibition against termination provides that an employer may not terminate an employment contract during sickness. However, application of the secondment provisions does not result in termination of the employment contract but in the contract ending by operation of law. This means that the statutory prohibition against termination does not apply, according to the Dutch Supreme Court.
The Dutch Supreme Court then assessed whether it was legally permissible to have an employment contract end by operation of law in the event of sickness. The law prohibits an employment contract ending by operation of law when a marriage or registered partnership is entered into or because of pregnancy or childbirth, but the law does not include a prohibition against an employment contract ending by operation of law in the event of sickness. This means that the secondment provisions are not contrary to any statutory prohibition. The Dutch Supreme Court then found that the secondment provisions actually constituted a condition subsequent. However, a condition subsequent in an employment contract is only permitted if the employer (in this case the secondment agency) does not have any control over the fulfilment of that condition. For this reason, secondment provisions are only legally valid if the hiring company requests termination of the secondment worker’s assignment.
In short, the secondment provisions retained their value after all, and the secondment worker was the unsuccessful party. A legislative amendment is required if the legislature wants to give sick secondment workers more protection.
