Tenth anniversary of Article 9a of the Waadi

The prohibition on hindering employment (Article 9a of the Waadi Act) stipulates that a worker made available—such as a temporary agency worker or seconded employee—may not be prevented from entering into employment with the hirer after the assignment ends. A clause prohibiting this is void. However, the lending company may charge a reasonable fee for its recruitment and training.

What is the injunction prohibition?

The Labour Allocation by Intermediaries Act (Waadi) contains the prohibition on impediments in Article 9a. It prohibits preventing a worker, whom you have hired through an intermediary (such as a temporary employment or secondment agency), from entering into direct employment with the hirer after the assignment. The worker must be free to make that transition.

Prohibited clauses are void

A clause that prohibits or hinders such a transfer — for example, a prohibition for the hirer to take over the temporary worker, or a high penalty for doing so — is contrary to the prohibition on impediments and is therefore void. Consequently, the temporary worker may enter into employment with the hirer despite such a clause.

Quite a reasonable compensation

The prohibition does not mean that the lender is left empty-handed. He may charge reasonable compensation for the costs incurred for the provision, recruitment, or training of the worker. However, that compensation must be reasonable and proportionate; a disguised fine that makes the transition impossible is not permitted.

What does this mean for you?

If you are a lender, you cannot prohibit a takeover, but you can stipulate reasonable compensation. If you are a borrower, you can hire a good employee despite a restrictive clause, provided you pay reasonable compensation, if applicable. Have the agreements drafted carefully, as the line between permissible and void is fine.

Frequently Asked Questions

Am I allowed to hire a temporary worker despite a ban?

Yes. A clause that prohibits or hinders this is in principle void pursuant to the prohibition on impediments (Article 9a Waadi).

May the lender charge a fee?

Reasonable compensation for recruitment and training is allowed. A disguised fine that makes the switch impossible is not.

To whom does the prohibition on impediments apply?

For workers made available, such as agency workers and seconded employees, in their relationship with the hirer.

Questions about hiring and the non-compete clause?

Our legal experts advise on the Waadi and draft your employment contract . View our employment lawteam or schedule a free consultation.