To what extent is an employee allowed to perform secondary activities for another employer or on a self-employed basis? For a long time, in the absence of a specific statutory regime, the answer to this question could only be derived from general legal principles such as the freedom of choice of work, freedom of enterprise, the right to privacy and the duties of good employee and good employer. Because of this variety of legal norms, there was no clear line in case law that employers and employees could rely on. With the adoption of the EU Directive on transparent and predictable working conditions in 2019, specific rules on secondary employment were ultimately introduced into Dutch law.
In the latest issue of ArbeidsRecht, Remmert Koster has published an article in which he analyses several decisions on the validity of secondary employment clauses under the new legislation. In this article, he discusses the permissibility of secondary employment clauses, the key considerations involved, and the possible consequences of breaching a valid secondary employment clause, all on the basis of recent case law.
In short, the introduction of the new statutory provision enhances the predictability of disputes and thereby strengthens the position of employees for whom secondary work constitutes an essential part of their income. At the same time, the extensive (procedural) disputes that arise once a ban on secondary employment is invoked show that employers and employees sometimes struggle with how to deal with such a prohibition in practice.
Would you like to know how, as an employer, you can respond to employees’ secondary activities in a practical and legally sound way? Or are you curious about the recommendations from the article? Please feel free to get in touch for more information or advice!