As is well known, an employer may offer a total of 3 fixed-term employment contracts for a combined maximum period of 3 years. After the above, as an employer, you must make a choice to either enter into an indefinite contract or say goodbye to the employee.
What if you have promised that the employee will get an open-ended contract if he or she performs well, but as an employer you change your mind anyway? Can the employee then still claim an open-ended contract?
Recently, the Hague Court of Appeal considered this question. The employer in this case had ultimately not extended the contract for an indefinite period of time but had made an offer to extend the contract for another fixed term anyway. The employee in this case took the position that she had performed well and that the performance interviews held had not shown otherwise either. She therefore demanded an open-ended contract. After all, the employer had promised her this on good performance. Moreover, the employee had recorded conversations between her and the employer from which it could be deduced that she was performing well.
Ultimately, the Court of Appeal concluded that despite the fact that the employer was satisfied with the performance and had offered the employee a new improved fixed-term contract, it was sufficiently clear from various documents that there were still doubts in the employer's mind about the good performance and the employer was still free not to offer a permanent contract.
An important lesson from this case is that, as an employer, it is better not to make promises. The term “good” performance can be interpreted broadly and thus lead to a lawsuit. If you do want to make a promise, make clear agreements with objectively defined goals.