The use of the temporary agency clause in the employment contract of a temporary agency worker remains a much-discussed topic within employment law. But what exactly happens when a temporary agency worker reports sick and the employment contract ends automatically due to the temporary agency clause? In this article we discuss the recent Supreme Court ruling (17 March 2023) that clarifies what is and is not permitted.
What is a temporary agency clause?
A temporary agency clause is a special provision included in temporary agency employment agreements. This clause stipulates that the employment contract between the temporary agency worker and the temporary employment agency ends as soon as the client (hirer) can no longer or no longer wishes to use the services of the worker, or when the temporary agency worker can no longer perform the agreed work, for example due to illness.
The case: the dispute over continued wage payment
In the case that led to the Supreme Court’s ruling, a temporary agency worker lost two fingers while working as a machine operator. He reported sick and his employment contract ended immediately on the basis of the temporary agency clause. However, the temporary agency worker believed that his employment contract had not been terminated and demanded continued payment of wages during his illness. The District Court of The Hague rejected his request, but the Court of Appeal of The Hague ruled otherwise: the temporary agency clause would be contrary to the statutory prohibition on termination during illness and granted the request for continued wage payment.
The Supreme Court: Temporary agency clause permitted when reporting sick
The Supreme Court ultimately ruled that the temporary agency clause does not conflict with the prohibition on termination during illness. The Supreme Court indicated that the statutory prohibition on termination prevents an employer from terminating the employment contract during illness. However, the temporary agency clause does not lead to termination, but to an automatic end of the agreement by operation of law. The prohibition on termination during illness is therefore not applicable.
In addition, the Supreme Court clarified that there is no statutory prohibition on ending 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 agency clause continues to apply in case of illness, provided that the hirer submits a request to terminate the assignment.
Consequences for employers and temporary agency workers
For employers and temporary employment agencies, this ruling means that they can continue to apply the temporary agency clause in cases of illness. This provides flexibility in the event that a temporary agency worker can no longer work. However, it is important that the hirer always submits the request to terminate the assignment, because otherwise the temporary agency clause cannot be validly invoked.
For temporary agency workers, this means that their employment contract can end in the event of illness, without the statutory prohibition on termination applying in their favor. This can have adverse consequences for continued wage payment during sickness.
Conclusion
The Dutch Supreme Court’s ruling confirms that the agency clause remains a valid instrument within employment law, even in the event of an agency worker’s illness. Employers and employment agencies must ensure that they follow the correct procedures to prevent the agency clause from being applied improperly.
Do you have questions about the use of the agency clause or other aspects of employment law? The team at Arslan Advocaten is ready to advise and support you. Contact us today for a no-obligation consultation.
