From 1 August 2022, employers will, in principle, no longer be allowed to prohibit their employees from working for someone else or for themselves. This is set out in the bill Implementation of the EU Directive on transparent and predictable working conditions.
Void
Any clause whereby the employer prohibits or restricts the employee from carrying out work for others or for themselves (as a self-employed person) will be void from 1 August 2022. This means that the clause will not have the legal effect intended by the employer; in other words, the clause will not be enforceable.
This, of course, refers to secondary employment that the employee undertakes outside the hours agreed with their employer.
Grounds for justification
A ban on secondary employment is still permitted where this is justified on objective grounds. This justification does not need to be set out in the employment contract. The employer may also provide the justification retrospectively, for example where the employer invokes the ban on secondary employment in court proceedings.
Examples of grounds for justification include:
- health and safety;
- protection of the confidentiality of business information;
- integrity of public services;
- avoiding conflicts of interest.
However, other grounds are also possible. The explanatory notes to the bill mention a breach of a statutory provision (for example, the Working Hours Act).
Consent
Existing employment contracts must also be brought into line with the new legislation. In practice, employment contracts often include a clause stipulating that secondary employment is permitted only with the employer’s express consent. Such a clause will remain permissible from 1 August 2022 onwards. However, the employer may only refuse to grant permission for secondary employment if they can provide a justifiable reason, based on objective grounds.