Vanaf 1 januari 2025 zal de Belastingdienst weer gaan handhaven op schijnzelfstandigheid. Schijnzelfstandigheid betekent kort gezegd dat iemand zich presenteert als zelfstandige terwijl er volgens het arbeidsrecht sprake is van een dienstverband. Vanaf 1 januari 2025...

Employees have dismissal protection during the first two years of illness. In principle, the employer cannot terminate the employment during that period. In practice, the employer regularly presents the employee with a settlement agreement for signature in order to terminate the employment by mutual consent. In general, it is not wise to enter into a settlement agreement with a sick employee. A sick employee who has been sick for less than 104 weeks (and is thus protected by the termination prohibition during illness) and agrees to be fired runs great risks of losing benefits. If the employee is still sick on the termination date, he/she is not eligible for unemployment benefits. This is because the employee is not available for work, which is one of the requirements for a claim for unemployment benefits ("WW"). Nor will the employee receive sickness benefits ("ZW"). During the first 104 weeks of illness, the employer must continue to pay the employee's salary. If an employee signs a settlement agreement during this period in which wages must continue to be paid, this is seen by Employee Insurance Agency ("UWV") as an act of prejudice. It can also be risky for employers to sign a settlement agreement with a sick employee during the mandatory salary payment period. An employee who does not receive benefits from UWV can apply to the subdistrict court and appeal for annulment of the settlement agreement due to misrepresentation ("dwaling") or abuse of circumstances. In addition, when a sick employee leaves employment, the employer may be faced with an increase in the employer's premium for the Sickness Benefits Act and/or WGA, unless the employer is a self-risk bearer for these benefits. In these cases it is often wise to involve the company doctor. Ask the company doctor when he expects the employee to recover. If the employee has recovered, he/she should report better before the settlement agreement is signed.

There are some employees who do not take things very seriously when it comes to the rules that apply to them during illness. An example. It is a beautiful summer morning with a brisk breeze. Employee knows better than to throw himself into the traffic jam heading to work. He grabs his kitesurfing gear and takes the car to the beach. At noon, employee reports sick by phone. Employer takes immediate action and tries to get in touch with employee. It does not succeed. Even after two written warnings, the employee does not contact the employer. Employer again summons employee in writing to appear at work, failing which salary will be suspended. Employee again fails to appear at work and employer suspends payment of the salary. The employee is then summoned to the company doctor but fails to attend there either. UWV subsequently rules that the employee's reintegration efforts are insufficient. It can be risky to summarily dismiss an employee who fails to comply with sickness control rules. The Amsterdam Court of Appeal ruled earlier that repeatedly violating control regulations should lead to a wage sanction and not summary dismissal. So it turns out, the employer has to do a lot and is allowed to do very little. However, the employer in this case is not empty-handed. The employer can, despite the prohibition on termination during sick leave, have the employment contract dissolved by the subdistrict court for the employee's violation of the sick leave regulations. In this case, the subdistrict court dissolved the employment contract. According to the subdistrict court, the employee acted seriously culpable and was therefore also not entitled to the transitional compensation. Tip: Include an Absenteeism Regulation in the employment contract that sets out all agreements and monitoring requirements in case of illness. Then there can be no misunderstanding.

On 4 March 2024, Minister van Gennip of Social Affairs and Employment published a Bill to reform the non-competition clause for internet consultation. In our previous Information Letter, we already informed you that the Minister wants to tighten the rules on the non-competition clause. The non-competition clause is often included as a standard clause in employment contracts, leaving a large group of employees bound by a non-competition clause when they are not dealing with customers, relations or business-sensitive information. The government believes that the non-competition clause is used too widely and too often incorrectly where the interests between employer and employee are not balanced. According to the government, many employees are restricted in their choice of employment. And employers are less able to find new staff due to the broad use of the non-competition clause. Labour mobility is restricted too much. These are the main proposed changes: 1. Every non-competition clause (in employment contracts for a definite or indefinite period of time) must state the reasons why it is necessary because of important business or service interests. Without justification, the non-competition clause is void. 2. A non-competition clause with a duration of more than 12 months is void. 3. The geographical scope (think of an area or radius) must be included in the non-competition clause. 4. No later than one month before the end of the employment contract, the employer informs in writing whether it will keep the employee to the non-competition clause and for what period. In case of termination by the employer, the employer informs the employee no later than at the time of termination. 5. The employer who holds an employee to the non-competition clause must pay compensation equal to 50% of the last monthly salary for each month that the employee is held to the clause. That compensation must be paid to employee no later than the last date of employment. If the employer fails to pay on time then the non-competition clause no longer has effect. But the compensation will still be due. All this also applies to non solicitation clauses. Employer and employee can make different arrangements in a settlement agreement. The maximum duration of the clause and the obligation to state reasons cannot be deviated from. According to the bill, the new rules will enter into force on 1 January 2025. Competition clauses agreed before the entry into force of this bill will remain valid. The bill's new form rules (indication of the period for which the non-competition clause applies, geographical scope and justification in case of employment contracts for an indefinite period of time) do not apply to existing non-competition clauses. However, after the bill comes into force, existing non-competition clauses will be able to be subject to the new rules governing the invocation of the non-competition clause and the payment of compensation. On 13 February 2024, the House of Representatives adopted a motion setting a minimum income for a valid non-competition clause. This concerns a minimum income of one and a half times the modal salary (EUR 66,000 gross) assuming full-time employment. The Minister has indicated that she will investigate whether this restriction can also be added to the bill.

After 88 weeks of illness, the sick employee can apply for WIA ("Work and Income according Labour capacity Act") benefits. In principle, the UWV must make a decision within eight weeks of receiving the WIA application. The decision period can be extended, but the UWV must inform the employee...

Surveys show that one in three employers uses a non-competition clause in the employment contract. Usually as a standard clause. The clause prohibits the employee from performing similar work...