In the Netherlands, a fixed-term employment contract can be agreed a maximum of three times in a three-year period. After that, the employment contract is indefinite. Before the end of each fixed-term employment contract, the employer must notify the employee whether the employment contract will be extended, and if so, under what conditions. If the employment contract already turns out to be an employment contract for an indefinite period of time, and the employer gives the notice, that notice is considered a termination of the employment contract.

Under the Flexible Working Act, an employee can make a written request to adjust his working hours, workplace and working hours. The employee can make the request if he has been employed by the employer for at least 26 weeks. For example, the employee can request to work from home, to work from abroad, to work more hours, or at different times. The employer must respond to the request in writing within one month. Provided that the employer at least once consults the employee on the request, the request for adjustment of working hours or working time can only be rejected in case of compelling business interests, which may include interests of a safety, scheduling, financial or organisational nature. The compelling business interests are not required for rejecting the request for adjustment of the workplace. The employer must make a reasonable consideration and respond in writing within one month with reasons.

If the employer does not respond in writing and on time, the employee’s request is automatically granted.

Expansion Flexible Working Act

Article 12 of the EU 2019/152 Directive on transparent and predictable working conditions stipulates that an employee who has been employed for at least 26 weeks may (also) request in writing from the employer a form of work with more predictable and secure working conditions, if such work is available. From 1 August 2022, the Directive was introduced in the Netherlands and Article 2b was added to the Flexible Working Act. When this article was introduced, the minister explained that it refers to a request ‘for, for example, an employment contract for an indefinite period or with a fixed scope of work’.  The minister will have based this on recital 36 in the preamble to the Directive: ‘Where employers have the possibility to offer full-time or open-ended employment contracts to workers in non-standard forms of employment, a transition to more secure forms of employment should be promoted in accordance with the principles established in the European Pillar of Social Rights.’ Thus, the intention of the European and Dutch legislators seems to be that the employee with a fixed-term employment contract can apply for an indefinite employment contract.

The employer may reject the request with reasons. Compelling business interests are not required. Thus, the employer may also reject the request if it simply does not want to continue with the employee and wants the fixed-term employment contract to expire.

However, if the employee makes a request for an indefinite employment contract, the employer must be careful to respond to the request in writing within the one-month period (and the employer with up to 10 employees within three months), and not just comply with his legal obligation to give notice that he does not want to renew the fixed-term employment contract. After all, if he does not respond to the request in time, the request has already been granted and the employment contract is one for an indefinite period. A notice then becomes a notice of termination, which in the Netherlands requires the employee’s consent or preventive permission from UWV or the court.

Recent case law

The court in Limburg recently decided this. An employee had been employed under successive fixed-term employment contracts since November 2021. The last employment contract had been entered into until 8 August 2023. On 7 July 2023, the employer gave the employee written notice not to continue the employment contract as of 8 August 2023. And believed it had fulfilled its legal obligations. However, the employee had requested in writing on 20 June 2023 that her contract be converted to an indefinite contract. The employer did not explicitly respond to that request. The court ruled that by not explicitly responding (in time) to the employee’s request, the employment contract had become one of indefinite duration. A notice not to continue from 8 August 2023 was not enough; that was considered a termination of the employment contract for an indefinite period. And as a principle, that cannot be done with impunity without the approval of the court or government agency UWV.

The employer in this case was fortunate that the employee had turned to the courts too late and was out of remedies. Nevertheless, this case shows how important it is to respond in time to requests for adjustment of working hours, adjustment of the workplace, adjustment of working hours and conversion to an indefinite contract. Otherwise, the employee’s request will automatically be granted.

This article is also published in Lexology (ILO).