Many on-call workers, especially in the hospitality industry, work structurally more hours than stated in their employment contract. This can lead to discussion: how many hours are really part of the contract? This becomes especially important in case of sickness, holidays or dismissal.
To avoid that uncertainty there is the presumption of employment scope. This gives employees the right to claim the average number of hours worked as contractual employment scope.
What is the presumption of employment scope?
The law stipulates that when an employment contract has lasted at least three months, it is presumed that the employment scope is equal to the average number of hours worked in the past three months.
👉 In concrete terms: if you have worked an average of 30 hours per month, you may claim payment for 30 hours per month – even if your contract states 0 hours.
Presumption of employment scope at 0-hour contracts
Especially with on-call workers with a zero-hour contract there is discussion. On paper there is no guarantee of hours, but in practice on-call workers often work structurally more hours. Then the contract begins to resemble more of a permanent position.
Example from practice:
An on-call worker in the hospitality industry worked an average of 25 hours per week for six months. When there was less work, the employer only paid the hours he was scheduled for. The employee was able to claim payment for 25 hours per week through the presumption of employment scope.
When does the presumption apply?
The presumption can be invoked when:
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You have worked at least 3 months, and;
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You have worked structurally more hours than stated in the contract.
The employer can only rebut this if the hours worked are not representative, for example during a holiday rush or due to sickness of colleagues.
The reference period: 3 months or longer?
As standard, people look at the last three months. But the judge can sometimes handle a longer period.
Example from practice:
An on-call worker claimed to have a right to an average of 35 hours based on the past three months. The employer pointed out that this was a busy summer period. The judge chose a reference period of a year, resulting in an average of 28 hours per week.
Balanced Labour Market Act (WAB): offer of fixed hours
Since the introduction of the Balanced Labour Market Act (WAB), the position of on-call workers has been strengthened:
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After 12 months, the employer must make an offer for a contract with a fixed number of hours within one month.
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That number of hours must be at least equal to the average number of hours worked in the past 12 months.
Example:
An on-call worker worked an average of 20 hours per week for 12 months. The employer must then offer a contract of at least 20 hours per week.
When are you entitled to wages?
You are entitled to wages and a fixed number of hours if:
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You have worked for the same employer for 12 months (with breaks of max. 6 months), or;
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You have worked structurally more hours than stated in your contract in the past 3 months, and;
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There was NO case of temporarily increased work due to exceptional circumstances.
Examples from practice
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Example 1: A student with a zero-hour contract worked an average of 15 hours per week for 6 months. When his hours fell back to 5 per week, he claimed payment for 15 hours. This was granted.
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Example 2: A hospitality worker temporarily worked extra hours due to sickness of colleagues. When he wanted to claim more fixed hours, the judge rejected this as it was demonstrably temporarily increased work.
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Example 3: An on-call worker did not receive an offer for a contract with fixed hours after 12 months. With the help of a lawyer, he claimed a contract and back pay.
Checklist for on-call workers
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📄 Keep schedules and payslips as evidence of hours worked.
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📅 Look at the average of the last 3 or 12 months.
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📝 Check whether your employer has made an offer after 12 months.
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⚖️ Engage an employment lawyer in case of dispute over hours or wages.
FAQ about presumption of employment scope
1. What does presumption of employment scope mean?
After 3 months you have the right to the average number of hours worked as contract scope.
2. Does this also apply to a zero-hour contract?
Yes, on-call workers with a 0-hour contract can also invoke this.
3. What if my employer disagrees with my calculation?
The employer must demonstrate that your reference period is not representative.
4. Do I always have the right to a permanent contract after 12 months?
The employer must make an offer. Acceptance is your choice.
5. Can I claim backlog wages?
Yes, through the presumption of employment scope you can claim wages based on average hours worked.
Why Arslan Lawyers?
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We specialize in employment law and on-call contracts
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We guide wage claims and disputes over hours
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Support in negotiations and procedures
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Clear explanation and personal approach
Frequently Asked Questions
What is the presumption of employment scope and how does it protect workers with zero-hour contracts?
The presumption of employment scope states that after three months of work, an employee can claim the average hours worked as their contractual hours, even if their contract states zero hours. This helps workers receive fair compensation for the hours they actually work.
When can the presumption of employment scope be invoked?
The presumption applies if you have worked at least three months and have been working structurally more hours than your contract states. The employer can only rebut this if the additional hours are not representative, such as during holidays or sickness.
How is the reference period for calculating the average hours worked determined?
Typically, the last three months are used as the reference period, but courts may consider a longer period, like a year, if the circumstances justify it, to determine the average hours worked.
What rights do employees have under the Balanced Labour Market Act (WAB) regarding fixed hours?
After 12 months of work, employers are required to offer employees a contract with fixed hours, at least equal to the average hours worked in the past 12 months, providing more stability for on-call workers.
