The prohibition on hindrance is an important part of the Allocation of Workers by Intermediaries Act (Waadi), which protects temporary agency workers when entering into an employment contract with the hirer after their assignment ends. Under Article 9a of the Waadi, a temporary work agency may not create obstacles to the conclusion of an employment contract between the temporary agency worker and the hirer. This article explains exactly what the prohibition on hindrance entails, what exceptions exist, and how it works in practice.

When does the Waadi apply when supplying workers?

The Waadi applies as soon as workers, such as temporary agency workers, are put to work under the direction and supervision of another company (the hirer). It does not matter whether this happens on a structural basis or only occasionally, for example for a temporary job or replacement. Both commercial temp agencies and organizations that only occasionally make staff available fall within the scope of the Waadi.

What does the prohibition on hindrance entail?

The prohibition on hindrance is intended to strengthen the position of temporary agency workers, so that after their assignment they can easily enter into employment with the hirer. When the assignment (the secondment) ends, the temporary agency worker must be free to enter into an employment contract with the hirer without the employment agency imposing restrictions.

This means that a temporary agency worker may not be bound by a non-compete or non-solicitation clause that prevents him or her from taking up employment directly with the hirer. Any clause that creates such an obstacle is deemed void under Article 9a of the Waadi.

May a non-compete or non-solicitation clause be included for other temporary work agencies?

The prohibition on hindrance specifically aims to prevent temporary agency workers from being hindered in their move to the hirer after the assignment. This does not mean that all forms of non-compete or non-solicitation clauses are automatically invalid.A clause that prohibits the temporary agency worker from entering into employment directly with the hirer is not permitted and is considered void by law. However, in principle it is possible to include in the employment contract a non-compete or non-solicitation clause that restricts the temporary agency worker from taking up employment with other companies or competing temp agencies (so not with the hirer). Such a clause falls outside the scope of the prohibition on hindrance under the Waadi.Note: the same applies to such clauses: they must not go further than necessary and must not impose unreasonable restrictions. The courts assess on a case-by-case basis whether the clause is not too broadly worded and whether the interests of the agency worker are sufficiently safeguarded.

Background and purpose of the prohibition on imposing restrictions

The Waadi is intended to protect agency workers and to ensure that they work under comparable conditions to employees who are directly employed by the hirer. In addition to the prohibition on imposing restrictions, the Waadi provides, among other things, that agency workers are entitled to the same terms and conditions of employment as the hirer’s permanent employees. The prohibition on imposing restrictions is specifically aimed at facilitating the transition from agency work to a permanent job with the hirer.

The European framework: the Temporary Agency Work Directive

The prohibition on imposing restrictions in the Waadi is largely based on the European Temporary Agency Work Directive, which is designed to protect agency workers in all EU Member States. The Directive requires Member States to take measures to ensure that any impediment to concluding an employment contract between the agency worker and the hirer can be declared null and void. The aim of the Directive is to promote agency workers’ access to permanent employment contracts.

Application of the prohibition on imposing restrictions: who is protected?

The prohibition on imposing restrictions applies to agency workers, but the concept of “employee” in the Temporary Agency Work Directive is broader than the Dutch definition. According to the Court of Justice of the EU (CJEU), a self-employed person can also fall under the prohibition, provided there is an employment relationship in which the worker works under the hirer’s direction and, in return, receives remuneration. This means the prohibition applies not only to employees with an employment contract, but also to self-employed workers (zzp’ers) who work via a temporary agency arrangement.

Protection for self-employed workers (zzp’ers) where there is an employment relationship

In practice, the prohibition on imposing restrictions is interpreted broadly. It covers not only entering into an employment contract, but also the emergence of a so-called “employment relationship.” An employment relationship exists when someone performs services for another for a certain period, under that person’s direction and supervision, and receives remuneration for it. This is particularly relevant for self-employed workers: if a self-employed person (zzp’er) in fact worked under the hirer’s authority during the assignment, the prohibition can also apply to him or her. In that case, the agency may not put up barriers for this self-employed person to start working directly for the hirer afterward—even as a self-employed person.In this way, temporary employment agencies are prevented from using contractual provisions to hinder not only employees but also bogus self-employed workers in their free access to assignments with the hirer. Thus, the protection of the prohibition on imposing restrictions aligns with practice, in which the boundaries between employment and self-employment sometimes blur.

What are the limits of the no-hindrance rule?

Although the no-hindrance rule offers a lot of protection, there are a few exceptions:

• Reasonable fee for recruitment and training: The employment agency may, in certain cases, charge the hirer a fee if the hirer wishes to hire a temporary agency worker. However, this fee must be reasonable and may only relate to the actual costs incurred for recruitment and training. Standard penalty clauses are not permitted.
• Duration of the assignment: The longer the temporary agency worker has worked for the hirer, the less justified it is for the employment agency to charge a fee. After a long period of assignment, it is assumed that the employment agency has already recouped its costs.

Reasonable fee: what is allowed?

The law does not rule out that the supplier (the employment agency) in some cases is entitled to a fee when the temporary agency worker transfers to the hirer. However, this is only permitted if it concerns a reasonable fee. In practice, this means that the employment agency may make agreements with the hirer about a fee for actual recruitment costs incurred, possibly supplemented with a customary profit margin. This fee must always be proportionate to the costs incurred and to what is customary in the market. The duration of the placement also plays a role: the longer the temporary worker has worked through the employment agency the less likely it is that a fee is still justified.

What is permitted under the prohibition on restrictive clauses?

Although restrictions that prevent the temporary worker from entering into an employment contract with the hirer are not permitted, employment agencies may, under certain circumstances, still charge a fee. This fee must be reasonable and relate to the costs the employment agency has incurred for the recruitment, placement, or training of the temporary worker.

However, it is important that the amount is proportionate to the services provided. For example, the employment agency may charge a fee for recruitment costs, but not for the lost profit it misses out on because the temporary worker transfers to the hirer.

In short: the prohibition on restrictive clauses leaves room for compensation, but only for actual, demonstrable costs and never as a standard penalty or unfounded loss of profit. This ensures that the protection of the temporary worker remains paramount, while the employment agency can recover reasonably incurred costs.

Practical tips for drafting a lending agreement

To prevent disputes and provide clarity to all parties, it is advisable to include in the lending agreement or the general terms and conditions under which circumstances a fee may be due when a temporary agency worker transfers to the hirer. Ensure that this fee:

• Is transparent and reasonable
  The fee may only relate to demonstrable costs, such as recruitment and training, and must be proportionate to the investment made.
• Does not go beyond what is permitted
  Avoid wording that amounts to a penalty or compensation for lost profits; these are contrary to the prohibition on hindrance.
• Is clearly described
  Explicitly state which costs may be recovered and how they are calculated. This prevents subsequent disputes about the amount or lawfulness of the fee.
• Aligns with the duration of the assignment
  Be realistic about the period the agency worker has worked at the hirer; after a long assignment, the right to compensation generally lapses.

By properly arranging these points, you not only comply with legal requirements, but you also prevent ambiguities and possible disputes with clients and agency workers.

What happens if the prohibition of impediment is violated?

If an employment agency violates the prohibition of impediment by, for example, imposing a non-compete clause on the agency worker, that clause is void. In that case, the agency worker can still enter into employment with the hirer without hindrance. It is important that both employment agencies and hirers are aware of these rules to avoid unnecessary conflicts.

Conclusion

The prohibition of impediment under the Waadi is a crucial instrument to ensure that agency workers have the freedom to enter into an employment contract with the hirer after the end of their assignment. This prohibition ensures that employment agencies cannot raise obstacles, such as a non-compete clause, that prevent the agency worker from entering into employment with the hirer. Although there are some exceptions, such as reasonable fees for recruitment and training, the general rule is that the transition to a permanent employment contract should proceed as smoothly as possible.

Do you have questions about the prohibition of impediment or are you unsure whether your temporary agency agreement complies with the law? Then contact the employment law attorneys of Arslan Advocaten for expert advice and guidance.