The use of the temporary employment clause in the employment contract of a temp is a much-discussed topic within labor law. But what exactly happens when a temporary worker reports sick and the employment contract automatically terminates due to the temporary employment clause? In this article, we discuss the recent ruling of the Supreme Court (March 17, 2023) that clarifies what is and is not allowed.
What is a temporary employment clause?
A temporary employment clause is a special clause included in temporary employment contracts. This clause stipulates that the employment contract between the temp and the temporary employment agency ends as soon as the client (hirer) can no longer hire or wants to hire the temp, or when the temp can no longer perform the agreed work, for example because of illness.
The Case: The Conflict over Wage Payment
In the case that led to the Supreme Court’s ruling, a temporary worker lost two fingers while working as a machine operator. He reported sick and his employment contract immediately ended on the basis of the temp employment clause. However, the temp claimed that his employment contract had not been terminated and demanded wage continuation during his illness. The Hague District Court rejected his request, but the Hague Court of Appeal ruled otherwise: the temp employment clause would be in conflict with the statutory prohibition on dismissal during illness and granted the request for wage continuation.
The Supreme Court: Temporary Employment Clause Allowed in Case of Sick Reporting
The Supreme Court ultimately ruled that the temporary employment clause is not in conflict with the ban on dismissal during illness. The Supreme Court stated that the statutory prohibition on dismissal prevents an employer from terminating the employment contract during illness. However, the temporary employment clause does not lead to dismissal, but to an automatic end of the contract by operation of law. The prohibition on dismissal during illness is therefore not applicable.
In addition, the Supreme Court clarified that there is no legal prohibition on terminating an employment contract by operation of law in the event of illness, as there is for other situations, such as pregnancy. This means that the temporary employment clause remains valid in case of illness, provided the hirer submits a request to end the secondment.
Consequences for Employers and Temporary Workers
For employers and temp agencies, this ruling means that they can continue to apply the temporary employment clause in case of illness. This provides flexibility in case a temp can no longer work. However, it is important that the hirer always makes the request to end the secondment, as otherwise the temp employment clause cannot be invoked lawfully.
For temps, this means that their employment contract may end in the event of illness, without the statutory prohibition on dismissal working in their favor. This can have adverse consequences for wage continuation during illness.
Conclusion
The ruling of the Supreme Court confirms that the temporary employment clause is still a valid tool within labor law, also in case of illness of a temporary worker. Employers and temp agencies must ensure that they follow the correct procedures to prevent the temp employment clause from being applied incorrectly.
Do you have questions about the use of the temporary employment clause or other aspects of labor law? The team at Arslan Lawyers is ready to advise and support you. Contact us today for a free consultation.
