In early January, we drew your attention to the changes in labour law (Work and Security Act): Fact sheet Employment law changes . The Work and Security Act has created “the notice obligation” for employers since 1 January 2015. In practice, it appears that this notice obligation is regularly forgotten. What should you pay attention to?
Always allow employees with a temporary contract of six months or more to be informed no later than one month before the end of the contract in writing know whether you want to extend the contract and, if so, under what conditions. To prove that the employee has received the notice, it is wise to send the notice by registered mail or have the employee sign for receipt.
If you forget to give notice, the employment does simply end by operation of law. This has not changed.
If you do not give notice or do not give notice in time, the employee can claim compensation. The employee must do so within 2 months of the end date of the employment contract. You can reject a request after that deadline. The notice penalty also applies if you do want to extend the contract (but do not do so or do not do so in writing). Incidentally, when entering into a temporary contract, it is (for the time being) allowed to include a provision whereby you give notice in advance.
The notice penalty is one month's salary and, in case of late compliance, a pro rata compensation. For example, if you are two weeks late in giving notice, you pay two weeks‘ wages as a notice penalty. ’Wages' means the gross hourly wage multiplied by the agreed working hours per month. If no or varying working hours have been agreed, it is the gross hourly wage multiplied by the average number of hours worked per month in the 12 months preceding the end date of the employment contract or - in case of a shorter employment contract - during the duration of the employment contract. If the salary consists wholly or partly of commission or depends on the results of the work performed, then salary shall also mean: the gross salary due in the 12 months preceding the end date of the employment contract, insofar as it consisted of commission or depended on the results of the work performed, divided by 12. In the case of an employment contract shorter than 12 months, the number by which the amount is divided shall be adjusted pro rata.
In any case, we advise you to take stock of all your temporary contracts, taking into account the (written) notice period. This will avoid unnecessary fines and discussions with your employees. Finally, you would be wise to include a “notice in advance” clause in new temporary contracts of six months or longer.