The Supreme Court of the Netherlands has ruled that temporary employment contracts do not automatically end when an agency worker is ill and can only be terminated by the agency if the hirer requests termination of the temporary worker's posting.

When an agency worker is no longer able to work due to illness or an accident, the existing Collective Labour Agreement for Temporary Workers 2021-2023 states that the “agency work employment contract ends because the hirer, for whatever reason, is no longer willing or able to hire the agency worker.” This is known as the “agency clause”.

This ruling means that in the case of agency work employment contracts with an agency clause, the contract can only come to an end in the event of incapacity for work, if the client makes an active request to this effect.

The case relates to a claim for wages made by a worker against a temporary employment agency, Employment Office Solutions, in a district court in 2017 which rejected the claim.

On appeal, the Court of Appeal of The Hague allowed the wage claim on the grounds that the collective labour agreement provision conflicts with the statutory prohibition on dismissal during illness. The temporary employment agency then lodged an appeal against this judgment with the Supreme Court.

The temporary employment agency argued, among other things, that the collective labour agreement provision is in accordance with the statutory regulation of temporary employment contracts.

The Advocate General advised the Supreme Court to reject the temporary employment agency's appeal and to uphold the lower Court's ruling.

In its judgement, the Supreme Court stated, that the statutory regulation of the employment contract contains special provisions regarding the agency work employment contract. One of those provisions concerns the ‘so-called temporary employment clause’ (“agency clause”) i.e., an agency work employment contract may include that the contract ends because the temporary worker's assignment to the hirer comes to an end at the request of the hirer. This temporary employment clause only applies during the first 26 weeks of the temporary employment contract. This period can be extended by collective agreement to a maximum of 78 weeks.

The Supreme Court ruled that the agency clause can also lead to termination of the agency work employment contract in the event of illness of the agency worker and is not in conflict with the statutory prohibition on dismissal in the event of illness. However, in such cases it is required that the hirer submits a request to terminate the temporary worker's posting. 

Jurrien Koops, director of ABU (Dutch Federation of Private Employment Agencies), said, “The Supreme Court creates clarity and supports the collective agreements that social partners and employers have made with each other.”

The ABU added that it is studying the further content of the judgment in close cooperation with unions NBBU and UWV.