Dutch employment contracts: what has to be in writing

No. Article 7:610 BW, in Book 7 of the Burgerlijk Wetboek, contains no form requirement, so an oral arbeidsovereenkomst is valid and enforceable. Four elements make one: work, pay, over a period of time, in the service of the other party. Agree those with somebody and you have a Dutch employment contract, whether or not anything was signed.

The formality falls on the clauses instead, and it is absolute rather than corrective. A proeftijd is void unless agreed in writing under article 7:652(2) BW. A concurrentiebeding is void unless in writing under article 7:653(1)(b) BW. A beëindigingsovereenkomst, the agreement that ends the contract by consent, is valid only in writing under article 7:670b(1) BW. Void means the clause never existed, not that a court will read it down to something reasonable.

So the risk of an unwritten Dutch contract runs one way. The employee still has every statutory entitlement: holiday at four times the weekly working hours, sick pay, notice, a transitievergoeding. The employer has no probation, no restraint on competition and no agreed way of ending things.

There is a second, quieter reason every Dutch employer writes it down. A written contract is one of the conditions for the low AWf contribution rate on the employer side, alongside the contract being indefinite and not an on-call arrangement, so the paperwork has a price attached to it every month. Our guide to hiring an employee in the Netherlands covers the order the steps come in.

Article 7:655 BW imposes a separate written information duty, which is why a Dutch contract reads longer than its equivalent elsewhere. The employer has to give the employee a written or electronic statement covering, among other things, the items below. The article continues past them, so treat this as the core rather than the whole list.

• The names and places of residence of both parties, and the place or places of work
• The employee’s function or the nature of the work, and the start date
• For a fixed-term contract, the end date or the duration
• Holiday and other paid leave entitlement, or the method of calculating it
• The termination procedure, including notice periods or how they are determined
• The pay: the starting amount, its separate components, and the method and frequency of payment

The working-time item splits in two, and the split is the part employers get wrong. Where working times are largely predictable, the statement gives the normal daily or weekly hours, the arrangements for work outside them, the pay for that work and any shift-swap rules. Where working times are largely unpredictable, it has to state the principle that times are variable, the number of guaranteed paid hours and the pay above them, the days and hours on which the employee can be required to work, and the notice periods under article 7:628b(3) BW.

Where there is no fixed place of work, the statement says so: either that the employee works in various places, or that they are free to determine their own workplace. That is a drafting decision with consequences, because it is the clause a later argument about working from a different city will be read against.

Most Dutch employers discharge the duty inside the contract itself rather than in a separate letter, which is tidier and has one drawback: every item in the statement then reads as a contractual term the employee has accepted. Where the pay components, the leave calculation or the notice arrangements are described loosely, they are being described loosely in the document that will be produced first in any dispute.

Article 7:652(6)(a) BW is unambiguous: no proeftijd may be agreed where the arbeidsovereenkomst is entered into for at most six months. Article 7:652(8) BW then makes any clause contrary to the article void. A one-month probation written into a six-month contract is not shortened and not adjusted. It has no effect, and a dismissal in week two of that contract is a dismissal without permission.

Where a proeftijd is available, the ladder runs like this. An indefinite contract takes up to two months. A fixed term longer than six months but shorter than two years takes up to one month. A fixed term of two years or more takes up to two months. A fixed term with no calendar end date takes up to one month.

Three further rules catch employers who think in terms of a rolling trial period. The proeftijd must be the same length for both parties. It must be in writing. And it is void in a successive contract with the same employer, unless the new contract clearly demands different skills or responsibilities, and void again with a successor employer.

The practical effect is that a short first contract buys you nothing on the probation front. An employer that wants a genuine trial period writes a fixed-term contract of more than six months, takes the one month the statute allows, and plans the rest of the relationship around the chain rules below. What happens after the proeftijd window closes is set out in our guide to terminating employment in the Netherlands.

Article 7:668a(1) BW converts a fixed-term contract into an indefinite one by operation of law on two triggers, whichever comes first. Successive fixed-term contracts with intervals of at most six months that together exceed 36 months, intervals included, convert. And more than three fixed-term contracts succeeding one another with intervals of at most six months convert. Three contracts or 36 months, and the interval that breaks the chain is one of more than six months.

Conversion is automatic. Nobody sends a letter and nothing has to be signed: the fourth contract, or the day the chain passes 36 months, simply produces an arbeidsovereenkomst voor onbepaalde tijd on the same terms, with everything that follows about permission and notice.

The chain follows the work rather than the legal entity. Article 7:668a(2) BW runs it across different employers that must reasonably be regarded as each other’s successors in relation to the work done, and it does so regardless of whether the new employer had any insight into the employee’s qualities and suitability. Moving somebody onto a different payroll does not start the count again.

A CAO can move the dials, but only so far: up to 48 months and up to six contracts, and only where the intrinsic nature of the business requires it for designated roles. Employees at or above AOW age are on 48 months and six contracts by statute. And ending a chain has a price of its own, because a transitievergoeding is owed where a fixed-term contract is not continued on the employer’s initiative.

An oproepovereenkomst under article 7:628a(9) BW is a contract where the volume of work is not fixed as a single number of hours per period of at most a month, or per period of at most a year with the pay spread evenly, or where the employee has no right to pay when no work is performed. Calling it a flexible arrangement in the contract does not keep it out of the article.

Four rules do most of the work. Every call of less than three hours is paid as three hours, where the agreed hours are under 15 a week with no fixed times, or the contract is an oproepovereenkomst. The employee cannot be required to respond to a call unless the times were given in writing or electronically at least four days in advance. If the employer cancels or changes the call inside four days, the employee is still entitled to the pay. A CAO may shorten those four days to no fewer than 24 hours.

Then there is the annual offer, which is the rule that quietly ends most on-call arrangements. Every time the contract has lasted twelve months, the employer must within one month make a written or electronic offer of fixed hours at least equal to the average over those twelve months, taking effect at the latest on the first day after two further months. The employee has a month to accept. An employer that fails to make the offer owes pay for the average volume anyway, for the whole period the offer is outstanding.

Two smaller points complete the picture. Contracts succeeding one another with intervals of at most six months are added together for the twelve-month count, and the earlier offer carries across to successor employers. And notice from an on-call employee is four days rather than a month, under article 7:672(5) BW, which is worth knowing before a rota is built around one person.

Dutch employment law has several provisions that correct the document against what actually happened, and they all work the same way: the facts win. This is the part of Book 7 that turns a tidy contract into a live question two years later.

Article 7:610a BW presumes an arbeidsovereenkomst where somebody performs work for another for reward for three consecutive months, weekly or for at least 20 hours a month. Article 7:610b BW presumes that the agreed working time in a given month equals the average of the preceding three months. The first decides what kind of contract exists; the second decides how big it is. Both are rebuttable, and both put the burden on the engager. Our guide to employee misclassification in the Netherlands covers the test that follows.

The ketenregeling does the same job for duration and the on-call offer does it for hours, and neither waits to be invoked. A Dutch contract is therefore best read as a floor rather than a description: it records what was agreed on day one, while the statute keeps measuring what has happened since.

Where you hire through an Employer of Record Netherlands arrangement, the EOR becomes the legal employer of the person you hire and the arbeidsovereenkomst is drafted and held by the employing company, with the written statement under article 7:655 BW issued with it. Your business chooses the person, sets the pay and runs the work; the contract terms, the proeftijd question and the chain count sit with the employer named on the document.

Two clauses sit outside the statutory minimum and are worth settling before signature rather than after. A concurrentiebeding has to meet conditions to bind at all, and the default owner of an invention an employee makes is set by statute rather than by your template. Our post on protecting IP when hiring in the Netherlands covers both.