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Successive term of employment: when does it occur?

Will an employee join a new employer? Then it is very important for both the employer and the employee to determine whether the employer can be regarded as a ‘’successive employer’’. If successive term of employment is the case, then there are a certain number of legal consequences involved. For this reason, it is important to know when this is the case. Read more about successive term of employment in this blog.

In which situations does successive term of employment play a role?

Successive term of employment may be involved in a business takeover. Or if an employee is first employed through an employment agency and later directly by an employer. The employee gets a different employer but continues to do the same or similar work. The new (‘successive’) employer is then obliged to take into account the employee’s previously worked periods and contracts.

Successive term of employment can play a role, among other things, in the following situations:

  • The probationary period: The successive employer may not agree to a (new) probationary period with the employee, even if they are contracting with each other for the first time.
  • The Ragetlie rule: Did the employee have a permanent contract with the previous employer, but does the successive employer offer a temporary contract? In this case the temporary contract will not end by operation of law. The successive employer will have to follow the regular dismissal procedure.
  • Provision on succession of fixed-term employment contracts: For the successive employer, both permanent and temporary contracts that the employee has contracted with his previous employer count. This may mean that the successive employer can no longer offer a temporary contract to the employee.
  • Period of notice: When determining the length of the period of notice, the successive employer has to take into account previous employment contracts that the employee has contracted with his previous employer.
  • Transition payment: When determining the amount of the transition payment, the successive employer need to take into account the years of service that the employee has spent with his previous employer.

Conditions for successive term of employment – general

Successive term of employment generally exists when the following conditions are fulfilled:

  1. The employee is initially employed by another employer;
  2. The employee then transfers to a new employer, which can be regarded as a ‘successive employer’;
  3. After the transfer, the employee continues to perform the same or similar work.
  4. The initiative for this transfer lies with the old and/or the new employer.

Did the employee take the initiative to join a new employer or will the employee be doing other work for the new employer? Then there is no case of successive term of employment.

Conditions for successive term of employment – probationary period

In addition to the conditions mentioned above, one additional condition applies specifically to the probationary period, namely that:

  • there must be such a link between the new and the previous employer that it can be said that the insight into the employee’s capacity can be attributed to the new employer.

Are the old and previous employer unrelated? Then there is no case of successive term of employment for the probationary period and the new employer may agree a (new) probationary period with the employee. This is also justifiable, because the new employer has then not been able to obtain knowledge of the employee’s performance, which is exactly what the probationary period is for.

 

Do you have questions about the conditions and/or consequences of successive term of employment? Feel free to contact one of our lawyers.



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