Employees are not allowed to simply engage in secondary activities

In principle, an employee is free to do as they please in their spare time, but secondary activities (paid or unpaid work alongside the job) are not always permitted. Often, a clause regarding secondary activities is included in the employment contract, with a penalty or even a dismissal sanction. Even without such a clause, the principle of good employee conduct may prohibit secondary activities, for example in the event of competition or damage to reputation. Since August 1, 2022, a prohibition is only permitted with an objective justification.

Most employees work about 36 to 40 hours per week; the rest is free time over which the employer, in principle, has no say. However, secondary employment—work that the employee does alongside their job—is not automatically permitted.

The ancillary activities clause

Employers often wish to prevent employees from engaging in secondary employment, for fear of reputational damage, fatigue, violation of driving time regulations, or conflicts of interest. Therefore, a clause regarding secondary employment is often included in the employment contract, frequently with a penalty clause ; violation can even lead to dismissal.

Please note: since 1 August 2022 (Act implementing the EU Directive on Transparent and Predictable Working Conditions), a ban on secondary employment may only be enforced with an objective justification, such as health and safety, confidentiality, or the avoidance of conflicts of interest.

Deviating from the prohibition

The prohibition applies until the end of the employment contract or until the parties agree otherwise. The employer may grant permission for specified ancillary activities, subject to conditions. It is advisable to seriously consider such requests, as stubborn insistence may conflict with fundamental rights.

An example: a civil servant was granted permission to give swimming lessons, but not in his employer's swimming pool, and was required to keep the employer informed. Nevertheless, he started his own swimming school without informing the employer, even after requests. The permission was revoked, he continued, and was dismissed. The Central Appeals Board ruled that the dismissal was justified (ECLI:NL:CRVB:2021:1336).

Even without a condition: good employeeship

Even without a written clause, a prohibition may apply based on good employee conduct. An employee must always act in accordance with this, even in their free time: secondary activities incompatible with this—for example, competing with the employer or causing reputational damage—are not permitted. Since the court then rules on a case-by-case basis, you eliminate this uncertainty with a good secondary employment clause in the employment contract—which is, not without reason, one of our tips for a good employment contract.

Frequently Asked Questions

Is an employee allowed to perform secondary activities?

In principle, yes in his free time, unless a clause regarding secondary employment or good employee conduct prohibits it. Since August 1, 2022, objective justification is required to enforce a prohibition.

What if there is no clause regarding secondary employment?

In that case, a prohibition may also arise from good employee conduct, for example in the event of competition or damage to reputation. The judge assesses this on a case-by-case basis; a clause provides greater certainty.

May I refuse permission for secondary employment?

You may set conditions, but weigh requests seriously. Moreover, since 1-8-2022, you may only enforce a ban with objective justification.

Arrange secondary activities properly

The employment lawyers at MKB Juristen draft a valid ancillary activities clause or a letter of consent. View our expertise in employment law or make an appointment.