As of 1 August 2022, the legislative proposal to implement the Directive on transparent and predictable employment conditions in the European Union will be in force. This has led, among other things, to the introduction of a new Section 7:653-a of the Dutch Civil Code. This article reads:
[Paragraph 1] “A clause by which the employer prohibits or restricts the employee from carrying out work for others outside the times when work is to be carried out for that employer shall be null and void, unless such clause can be justified on the basis of an objective reason. “
[Paragraph 2] “The employer shall not cause detriment to the employee by reason of the fact that the employee has asserted or assisted in asserting, in or out of court, the rights granted to him by this Article or has made a complaint in this regard.”
What are objective reasons?
The Directive mentions as examples of objective reasons:
- health and safety;
- protecting the confidentiality of company information;
- the integrity of public services; and
- the avoidance of conflicts of interest in cases where the employer wishes to invoke a prohibition on working for another person.
These objective reasons are not exhaustive. A reason could also be the prevention of violation of a statutory regulation, for example, when the performance of side activities leads to a violation of the working time legislation.
Consequences for employers
- It is not required to include the objective reasons in the employment contract.
- An ancillary activity clause in an existing employment contract does not need to be amended, the objective reason can also be given later.
Under this article, it will be more difficult for employers to impose a ban on secondary employment on employees or to enforce an already agreed ban.
We recommend including the objective reason for the ban on ancillary activities in new employment contracts. This provision should not be drafted too tightly and should provide the necessary space and flexibility for the employer. The employer thus demonstrates that it has thought about this beforehand and the employee has been able to take it into account when entering into the employment contract.