Previously, I wrote about seconded employees in IT who often cannot be held to their relationship clause. This is a growing problem for secondment companies. They become involved in proceedings regarding the validity of the non-solicitation or competition clause and subsequently see their employees take up employment with the client or work as self-employed persons. It is therefore very important that the secondment company seeks proper advice beforehand and does not make any costly mistakes when drafting a non-solicitation clause.
Meanwhile, more and more brokers (intermediaries) who place IT professionals with their clients are confronted with relationship clauses that turn out not to be valid.
How about this?
The Act on the Allocation of Labour by Intermediaries (abbreviated to WAADI) contains a prohibition on obstructing employment in Section 9a. The prohibition of obstructions stipulates that the employer who posts an employee may not obstruct him from entering the employment of the hirer (the party where the employee is actually working). A non-competition clause and a non-solicitation clause are regarded as prohibited obstructions. If the non-solicitation clause is not worded properly, it may even lose its validity with regard to all of the employer's business relations.
In short, if the WAADI applies, the seconding party cannot often hold its employee to the relationship clause.
When the WAADI?
For a successful appeal to the prohibition of obstruction from the WAADI, a number of conditions must be met. For example, it is necessary that the posted employee performs his work at a third party (hirer / client) and that the employer receives compensation for this. It is also required that the work is done under the management and supervision of this hirer. The latter is often the main point of discussion in court cases.
Also for freelancers
The Supreme Court ruled in 2017 that posted employees who wish to continue their work as ZZP's may also rely on the ban on obstructions. However, it must be assessed on a case-by-case basis whether the intended self-employed work permit construction meets a number of conditions.
In its 2020 judgment, the Court of Appeal of 's-Hertogenbosch expanded the scope of the ban on obstructions even further. The Court of Appeal has ruled that a non-solicitation clause in the assignment contract of a self-employed person can also be in breach of the prohibition of obstruction. Contrary to the case in the Supreme Court, this case did not concern an employee who was prevented from continuing as a self-employed person by the non-solicitation clause, but a self-employed person from the outset.
In short, for the ban on obstructing employment (Section 9a WAADI) to apply, it is no longer necessary for a non-solicitation clause to be included in an employment contract. It is therefore of great importance for brokers and intermediaries to be advised on how to place self-employed persons and how to agree on a legally valid non-solicitation clause and/or how to protect their business.
PLEASE NOTE, update of 20 May 2022: The above information is not up to date. In 2022, the Supreme Court ruled that the Court of Appeal of Den Bosch in 2020 had insufficiently examined whether the self-employed worker had an employment relationship. The court of appeal had insufficiently substantiated why the WAADI applied in this situation.
Questions about the relationship clause or protecting your business?
Do you have questions about protecting your business as a secondment provider or broker, the non-solicitation clause, the WAADI or other labour law issues? Please contact our labour law specialist Jonathan Abraha.
