When you work as a temporary agency worker, you have probably already heard of the temporary agency clause. But what does this actually mean, especially if you fall ill? In this blog, we discuss the rights of sick temporary agency workers and what the temporary agency clause entails.
What is the temporary agency clause?
The temporary agency clause is a provision in the contract of temporary agency workers under which the temporary agency employment contract automatically ends if the client (the hirer) no longer has work. This means that the temporary agency employment contract can stop without notice as soon as the hirer indicates this. This arrangement gives both the hirer and the employment agency flexibility, but can cause uncertainty for the temporary agency worker.
What happens if the temporary agency worker becomes ill?
Until recently, the agency clause meant that a temporary agency worker could immediately lose his or her job even when sick. As soon as the temporary agency worker reported sick, the temporary agency contract was automatically terminated. This caused a lot of uncertainty, as there was no entitlement to continued wage payment during illness.
As of 1 July 2023 however, this has changed. The new collective labor agreement for temporary agency workers includes an important change: the end of the temporary agency contract in the event of illness is no longer automatic. This means that a temporary agency worker can no longer be dismissed immediately because of illness. As a result, the rights of temporary agency workers are more aligned with those of permanent employees.
What does the law say about the agency clause and illness?
The law offers temporary agency workers protection through the prohibition on termination during illness. This prohibition means that an employee may not be dismissed while ill. Previously, however, this prohibition was circumvented by the agency clause, which caused the temporary agency contract to end immediately as soon as the temporary agency worker became ill was.
What has the Supreme Court ruled on the agency clause in case of illness?
The Supreme Court has ruled that the agency clause, in itself, does not conflict with the statutory prohibition on termination during illness. However, it is important that the agreement may not automatically end as soon as a temporary agency worker reports sick. The law prescribes that termination of the temporary agency employment contract can only occur if the hirer explicitly requests it—not merely upon a sickness report.In other words: the automatic end of the employment relationship in case of illness, purely on the basis of the agency clause, is no longer allowed. Only if the client (the hirer) officially requests to end the assignment, may the temporary agency employment contract be terminated, even during illness.This brings more certainty for agency workers and ensures that collective labor agreement provisions that stipulate otherwise are null and void to the extent that they conflict with this.
Thanks to recent changes in the collective labor agreement, this is now no longer permitted.
How does the court view the temporary agency clause in the event of illness?
The case concerning this ultimately ended up at the Court of Appeal in The Hague . They had to assess whether the temporary agency clause—under which the contract automatically ends in the event of illness—was permitted to exist alongside the statutory prohibition on dismissal during illness. The Court was very clear on this: automatically terminating the temporary agency contract due to illness is contrary to the prohibition on dismissal. According to the Court an agency worker who falls ill may therefore not simply lose his or her job by invoking the temporary agency clause.Among other things, this ruling has led to the current collective agreement and legislation being amended, so that agency workers are better protected during illness and have the same rights as other employees.Key points:
- The agency employment contract no longer ends automatically in case of sickness.
- The hirer can still terminate the assignment of the agency worker, but this must be explicitly requested.
- The employment agency is responsible for continued wage payment during the agency worker’s period of sickness, depending on the agreements between the hirer and the employment agency.
What does the ruling of the Supreme Court mean for termination in case of sickness?
The recent ruling of the Supreme Court provides even more clarity for agency workers and their employers. The essence is simple: an employment agency may not automatically terminate an agency employment contract as soon as an agency worker reports sick. According to the Supreme Court only the hirer—the company where you actually work—can request the termination of the placement. Only when such an explicit request is made can the temporary employment contract end, even in the event of illness.This means that simply reporting sick is no longer sufficient to automatically terminate the temporary employment contract. Rules in collective labour agreements that claimed the opposite are contrary to the law and therefore no longer apply. In summary: the agency clause remains, but no longer provides an automatic escape route in case of illness. The protection for sick temporary agency workers has thus been strengthened.
Legal debate: The agency clause versus the prohibition on dismissal during illness
In recent times there has been much debate about the agency clause in combination with the statutory prohibition on dismissal during illness. The core question: may a temporary employment contract automatically end as soon as a temporary agency worker reports sick, or is that contrary to the law?In various court cases, judges have considered this question. The Court of Appeal in The Hague ruled that the automatic termination of the temporary employment contract in case of illness conflicts with the dismissal ban. According to the court, illness may not be a reason to end the employment relationship immediately. After all, this would undermine the statutory right to continued wage payment during illness.The highest court, the Supreme Court, however, nuanced this ruling. The agency clause itself is not contrary to the dismissal ban. What is not allowed: automatically terminating the temporary employment contract solely because a temporary agency worker reports sick, if the hirer (client) does not explicitly request it. Under the law, the initiative to terminate the contract lies with the hirer, not automatically upon the employee’s illness.In short: a contractual provision that assumes that the temporary agency employment agreement ends immediately in the event of illness, without a request from the hirer, is invalid. The agency clause remains in place, but can only be applied if the hirer actually requests the termination of the placement.
What does the recent ruling of the Supreme Court mean for the agency clause?
To understand how the collective agreement for agency workers and a ruling by the Supreme Court intersect, it is useful to look at where they intersect: the protection of sick agency workers. Recently, the Supreme Court heard a case in which the agency clause was central. It examined whether a temporary agency worker may lose their job immediately upon illness, as seemed possible in some collective agreements and contracts.The core of the conflictThe case revolved around the following: may a temporary agency employment contract automatically end as soon as a temporary agency worker calls in sick, because this would be possible under the agency clause? According to earlier case law and some collective agreement provisions this was allowed — but that conflicted with the statutory prohibition on dismissal during illness.What did the Supreme Court?The Supreme Court has ruled that the agency clause may exist, but that a temporary agency employment contract may no longer automatically end in the event of illness. The contract may only be terminated if the hirer actually requests it. Simply put: calling in sick is not enough; the hirer must explicitly want the end of the placement, otherwise the contract continues.Link with the new collective agreementThis ruling aligns well with the latest collective agreement for the temporary staffing sector, which applies from 1 July 2023. The collective agreement has been amended to accommodate this ruling of the Supreme Court. Now a temporary agency agreement with agency clause can no longer end due to the agency worker’s illness, unless the agreed end date has been reached or the agency worker no longer wants to or is able to work (but not because of illness).In short: both the law and the collective labour agreement are now clear — protection during illness has been strengthened. The automatic end of your temporary agency agreement as soon as you are sick is a thing of the past. Your temporary agency agreement now ends only upon reaching the pre-agreed end date or if you yourself can no longer do the work (for reasons other than illness).
What happens if a collective agreement provision conflicts with the law?
Suppose a collective labour agreement (CLA) contains a provision that is not actually allowed under Dutch law. What happens then? In such a case, quite simply, the statutory rules always prevail. That means the part of the CLA that conflicts with the law is automatically invalid. You therefore do not have to comply with it, because the law takes precedence over the CLA.This ensures that employees are always protected by Dutch employment law, even if other arrangements are included in the CLA. So remember: if you are in doubt about a CLA provision, always check first what the law says.
When can a temporary agency agreement end?
Although the new rules strengthen the position of agency workers, there are still situations in which a temporary agency agreement can end:
- End date reached: The temporary employment contract can still end when the agreed end date is reached.
- No longer available for work: If the temporary agency worker can no longer perform or does not wish to perform the agreed work (except in case of illness), the contract can also end.
It is important to know that during illness the temporary employment contract cannot automatically end, unless the hirer explicitly requests the termination of the assignment. This request must be unrelated to the temporary agency worker’s illness.
Wage continuation during illness
A temporary agency worker, like a permanent employee, is entitled to continued wage payments during illness. This is arranged through the collective labor agreement for temporary agency workers and depends on the phase the worker is in (phase A, B or C).
Important to know:
- In the first 52 weeks of illness, the temp agency must continue to pay at least 90% of the most recently earned wages.
- After 52 weeks, this is reduced to 80% of wages.
- The employment agency is responsible for these payments, but in some cases may pass the costs on to the hirer, depending on the arrangements in the temporary employment agreement.
What does this mean for you as the hirer?When a temporary agency worker becomes ill, his or her temporary employment contract cannot simply end without your explicit request to the employment agency. It is important to know that the costs of continued payment of wages during sickness—which the employment agency pays to the employee—may be passed on to you. This depends on the arrangements between you and the employment agency.Currently, as long as the terms have not been amended, you can avoid the costs of wage continuation by asking the employment agency to terminate the assignment. Note: this is only a temporary solution.New rules as of 1 July 2023With the introduction of the new collective labor agreement for temporary agency workers an important change applies from 1 July 2023: the agency clause can no longer be used to terminate the agreement because of or during illness (or incapacity for work) of the temporary agency worker. Only if the agreed end date has been reached, or if the temporary agency worker can no longer or does not wish to perform the work (other than due to illness), may the agreement end. It is explicitly stipulated that during illness or incapacity for work, both the assignment and the temporary agency agreement continue, even if the hirer asks for this.Even under this new collective labor agreement it still depends on the agreements made to what extent you, as the hirer, must bear the costs of wage continuation during illness. Therefore, always discuss this carefully with the employment agency what applies in your specific situation.
Conclusion
The new rules regarding the agency clause in case of illness provide more certainty for temporary agency workers. Whereas previously the temporary employment contract could end immediately in the event of illness, that is no longer the case. The employment agency is required to continue paying wages during the period of illness, giving agency workers greater protection.
Are you a temporary agency worker and do you have questions about your rights when ill? Or are you a hirer and would you like to know more about your obligations? Then feel free to contact Arslan Advocaten. Our team of experienced employment law attorneys is ready to help you and advise you on all legal aspects of agency work.
