Illness of a temporary worker does not automatically mean termination of the contract

Illness of a temporary agency worker no longer automatically terminates the temporary employment contract with a temporary employment clause: according to the Supreme Court, this is only possible at the active request of the hirer. This has major consequences for temporary employment agencies, hirers, and temporary agency workers. Moreover, as of July 1, 2023, the social partners have abolished this automatic termination. Below, you can read what the ruling means and what you need to arrange now.

What was the case about?

The case revolves around the temporary employment clause in the collective labor agreement for temporary workers. It stipulated that an agreement containing a temporary employment clause automatically terminates as soon as the temporary worker reports sick. In this case, a temporary worker reported sick to the hiring organization following a work accident.

The temporary worker disagreed with the automatic termination. The District Court ruled against him, but The Hague Court of Appeal thought otherwise: an employee with an employment contract is protected against dismissal in the event of illness, and in that light, the temporary worker was entitled to continued payment of wages.

What did the Supreme Court rule?

The Supreme Court ruled that a temporary employment contract can terminate due to illness, but only at the request of the hirer. In practice, this means:

• Termination due to illness is only possible at the active request of the hirer;
• it is no longer automatic that the temporary employment clause terminates the agreement in the event of illness;
• The termination can only be invoked by the hirer, not by the intermediary party (the employment agency).

TODO_VERIFY: the exact time limits and phases (such as the duration of Phase A under the applicable agency collective labour agreement) and the precise ECLI of the ruling change or are dependent on the collective labour agreement — check the current collective labour agreement and ruling before relying on this.

What has changed since July 1, 2023?

The social partners have decided that, as of July 1, 2023, a contract containing an agency clause no longer terminates automatically if a temporary worker reports sick. With this, the old automatic termination has been permanently abolished.

What do you need to arrange now?

Action is required from intermediaries and hirers:

• review existing contracts and temporary employment clauses;
• Please note that only the hirer can invoke the termination, not the employment agency;
• carefully and in writing record a termination by the hirer;
• Also have the general terms and conditions of intermediaries checked regarding this point.

Frequently Asked Questions

Does a temporary employment contract still terminate automatically upon illness?

No. Since the Supreme Court ruling and the collective labor agreement amendment effective July 1, 2023, an agreement containing an agency clause no longer terminates automatically upon illness.

Who can terminate the temporary employment contract in the event of illness?

Only the hirer, and only via an active request. The employment agency (the mediating party) cannot invoke this.

What do I need to do as the hirer to terminate correctly?

Active termination is necessary. Document it carefully and in writing to avoid risks.

Do I need to adjust my existing contracts?

It is advisable to have your agreements with temporary workers and hirers, as well as your general terms and conditions, reviewed and, if necessary, adjusted to the new situation.

Have your temporary employment contracts checked

The Supreme Court ruling and the amendment to the collective labour agreement have direct consequences for temporary employment contracts and general terms and conditions. Do not take unnecessary risks and seek advice regarding the implications for your existing agreements.

Our employment law review your contracts. Schedule a no-obligation intake meeting or contact us.