As an employer, you may find that you employ an employee, but after three fixed-term employment contracts, you would rather not offer this employee a permanent contract.
Solution
To avoid this, employers thought of hiring the employee through a payroll company (or employment agency). This was because a payroll company had wider options for offering fixed-term contracts.
If you do not want to offer an employee an open-ended employment contract, do not use the aforementioned construction. As an employment contract for an indefinite period of time may still be concluded with you.
Supreme Court
The above follows, inter alia, from a ruling from the Supreme Court last February. It confirmed that a payroll company can no longer apply the broader chain-of-contracts rule. In fact, since the introduction of the Balanced Labour Market Act (WAB) as of 1 January 2020, payroll companies are also subject to a maximum of three fixed-term employment contracts in a maximum of three years, known as the chain rule.
Therefore, if the sole purpose of using an agency work employment contract with the payroll company is to get out from under the protection of the chain-of-commitments rule and the employee does not get an employment contract for an indefinite period of time as a result, this construction cannot prevent an employment contract for an indefinite period of time from being created after all. In principle, the above could also be argued for the situation where it is not a payroll company but an employment agency.
That an open-ended employment contract arises in the above situations (now also due to legislation) has partly to do with the fact that little changes for the employee when he is employed through the payroll company (or temporary employment agency), after having been employed by the hirer. The employee then often still only has contact with the company through which he was hired.
Reverse
So as an employer, be aware that evading an open-ended employment contract through a payroll company (or employment agency) is not a wise choice.
Finally, it is also wise to pay attention to the opposite situation: that in which you want to take over a hired worker from the payroll company or temporary employment agency. If, as a hirer, you take over this employee, the contracts the employee has had with the payroll company or temporary employment agency count with the “new” employer. It may therefore happen that, if you take over a temporary worker who has already worked for you, he or she is already immediately entitled to an open-ended employment contract.