Within 36 months, you may agree three fixed-term employment contracts with your employee. In most cases it is clear how many employment contracts you have agreed so far. The start date and end date are usually clearly stated in the contract. But what if you once had an employee do a trial run before the first employment contract starts? The court has ruled that this trial day sometimes counts as the first (oral) employment contract. If you’re not careful, you run the risk of an unwanted permanent employment contract arising! Read on to find out how to prevent this.

Trial day
It often happens that employers have a candidate do a trial day, or even just a few hours. Usually no agreements are made about this in advance. Only once the trial day has gone well is the first employment contract signed. That can cause problems, as the example below shows.

Example
A self-employed chef applies for a job at a restaurant. After the interview, the applicant is asked to help out in the kitchen for a few hours. He helps with dinner service and follows the chef’s instructions. It goes well for both sides. The hospitality entrepreneur and the applicant sign the first employment contract. The applicant starts employment as of 1 December. The three hours worked during the trial on 1 September are still paid out in the December payroll run.

After the first employment contract, two more fixed-term employment contracts are signed. So in total three fixed-term employment contracts have been signed, the hospitality entrepreneur thinks. That is still allowed.

The hospitality entrepreneur decides not to renew the third fixed-term employment contract and to part ways with the employee. The employee disagrees. He argues that he is by now employed on a permanent basis. According to him, those three hours of the trial day count as a first fixed-term (oral) employment contract. After that, three more fixed-term employment contracts were agreed. Four in total. That is one too many, and therefore his employment has automatically been converted to a permanent contract.

What does the court say in this situation?
The court then examines whether those 3 hours of the trial day constituted a first employment contract. The court checks three things, namely: (1) work, (2) authority, and (3) pay. The applicant took part in the work, so there is work. There is also authority: the applicant followed the chef’s instructions. The three hours of the trial day were also paid, so there is also pay. The fact that this was only paid three months later makes no difference.

This trial day (3 hours) therefore counts as the first employment contract. After that, three more fixed-term employment contracts were signed. That is one too many. That last fixed-term employment contract is therefore automatically converted into a permanent one. The employment contract therefore does not end on the agreed date: the employee remains employed and must continue to be paid!

How do you prevent this?
Of course you want to avoid being caught by surprise. It is certainly possible to hold a trial day safely. You could consider not paying wages, but only an expense allowance. Then the trial day probably does not qualify as an employment contract. Even better is to make use of the right (flexible) contracts. That limits your risk as much as possible and you know where you stand.

If you would like practical advice on this, contact us via our contact form or call 020-3450152.

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Nothing changes as constantly as laws and regulations. Please note that our blogs may no longer reflect current laws and regulations and may therefore be outdated. If you have questions or an issue relating to this blog, or wish to obtain legal assistance, please contact us.