If you are in paid employment, your employer can prevent you from doing other work alongside with an ancillary activities clause in your employment contract. However, as of 1 August, the rules for this clause will be overhauled. In many cases this is beneficial for the employee. Employment law lawyer Mariska Aantjes explains the situation.
The ancillary activities clause, what does it contain and what do companies use it for?
Aantjes: “The ancillary activities clause prohibits an employee from performing other activities outside the position. It can be a way for the employer to prevent people from questioning themselves. After all, if people work too much, there is a risk of absenteeism. A clause does not only have to apply to other paid employment, but also work as a self-employed person and unpaid work – voluntary work – can be included. It’s not necessarily about the kind of work you’re doing on the side, but the fact that you can’t rest if you’re doing something else on the side.”
Are there other reasons for an employer to include this clause in the contract?
“With an ancillary activities clause, an employer can also protect its own interests and, for example, prevent an employee from also working for a competing organization or performing activities that cause conflicting interests. In practice, you usually do not see that ancillary activities are completely banned. The clause often states ‘it is prohibited to do activities next to the position unless in consultation with the employer’. But then as an employee you have to ask for permission.”
What will change as of August 1?
“The EU directive on transparent and predictable employment conditions, which was adopted by the Senate last June, means that Dutch labor law must be amended on several points. One of the aims of the directive is to make it easier to have multiple jobs. This has particularly serious consequences for the ancillary activities clause. If an employer wishes to include an ancillary activities clause in a contract after 1 August, he must have a demonstrably good reason for doing so. Banning someone ‘just’ from working elsewhere is not allowed, and without a valid reason the clause is automatically null and void.
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Does that still have consequences for contracts that were concluded earlier?
,,Secure. This change applies immediately and also applies to employment contracts that were previously agreed. Every ancillary activities clause is now in principle null and void, unless the employer can prove that he has a valid reason for the clause. This puts the employee in a much stronger position than before.”
Anyone who now has an ancillary activities clause in his or her contract has reason for a good conversation with the boss?
Yes, the roles are reversed. Where the employer previously had the power to prohibit something, it is now the employee’s right to have multiple jobs, unless the employer can substantiate why that is really not possible. If you have such a clause in your contract, you can ask your employer what the valid reason is. Without it, the clause is in any case null and void and you do not have to abide by it.”
Where the employer previously had the power to prohibit something, it is now the employee’s right to have multiple jobs
So taking another job will be easier, but there are bound to be limitations. What should you pay attention to as an employee?
“The employee also has the responsibility to ensure that work next to it does not lead to a conflict of interest or harm the interests of the employer. In addition, make sure that you comply with the Working Hours Act. According to that law, a maximum working week can last 60 hours, but that is not allowed every week. Over a period of four weeks you are allowed to work an average of 55 hours, over a period of 16 weeks it is 48 hours. If you have a job for four days now, you can’t take one for another three days.”
What would be the result if you did?
“Then both employers have a reason to object. They can count on you as an employee to take your own health into account. If they let you work that long, they would also have to pay a hefty fine.”
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