Additional rules for working with flexible workers again

13 October 2022

On 1 August 2022 the European Union (EU) laid out new legislation in the field of labour law. This was as a result of the Act implementing the EU Directive on transparent and predictable terms of employment.

Under this new legislation, the rules for working with employees who do not have a fixed working pattern will change. These are employment relationships in which work must be performed at largely unpredictable times. This concept is new in labour law. It concerns situations in which the majority of working hours are not known in advance. In practice, this includes on-call workers in particular.

Reference days

Upon commencement of employment, the employer and employee must agree on the reference days and reference hours within which the employee can be called up or scheduled to perform work. Outside these reference days, the employee cannot be obliged to come to work. In addition, the employee may refuse work if they are only called up shortly beforehand. Based on the law, the period is 4 days before the start of work, but this period can be shortened by negotiating the collective employment agreement.

Setting reference days is therefore very important. We advise you to actively work on this.

Request for predictable working conditions

Any employee with an unpredictable working pattern who has been employed for at least 26 weeks can submit a request to the employer for more predictable and secure terms of employment. This could, for example, be a request for a schedule with more fixed days. The employer must respond to the request in writing with reasons within 1 month of the request. Employers with fewer than 10 employees have 3 months to respond. If the employer does not respond or does not respond in time, the employee's request is deemed to have been granted. Adjustment of the employment contract may then be required. In cases of a rejected request, employees can make another request  after a period of 12 months has passed.

It is therefore necessary to handle such a request carefully and always put the response in writing.

Prohibition of disadvantage

The law also now explicitly states that employers may not disadvantage their employees for exercising their rights under the new legislation.

It may be wise to proactively inform employees that after a minimum of 26 weeks of employment – if desired – they can make a request for predictable terms and conditions of employment.

Need advice?

Flexible working regulations are complicated and flexible workers are gaining more and more rights. If you feel you require advice or clarification regarding these changes, contact Baat's lawyers or your Baat advisor.