Netherlands Employment Update: Statement of the Week: “A Certificate of Conduct can be a Legally Valid Resolutive Condition of the Employment Contract”

Employers can expect employees to apply for and be granted a certificate of conduct/Verklaring Omtrent het Gedrag (VOG). Sometimes this follows from a legal obligation for the employer, other times it is the wish of the employer or an obligation based on agreements with certain contracting parties. In principle, a decision on the VOG will follow within a maximum of one month from the date of the application. The employer and employee do not always have the opportunity to wait for that period. Employers sometimes include a so-called ‘resolutive condition’ in the employment contract. This usually includes that the employee must submit a VOG statement within two months after signing the employment contract or starting employment. If the employee defaults, the employment contract ends by operation of law. This is due to the resolutive condition.

The not seasoned employment law specialist, but with some knowledge of dismissal law, will now think: how is this possible? An employment contract ends at the initiative of the employer when a fixed-term contract ends, by termination via the court or UWV, or after an immediate dismissal. However, the Supreme Court has allowed the resolutive condition if 1) the resolutive condition does not conflict with dismissal law (think of pregnancy); (2) the employer must not be able to influence the condition imposed; and 3) after fulfilment of the resolutive condition, it must no longer be possible to give substance to the employment contract.

The judge of the Zeeland-West-Brabant district court applies these elements in a ruling published this week. It was common ground that the employee had been given sufficient opportunity to apply for the VOG at all and had failed to do so. However, the decisive factor was to what extent the employer could also substantiate that the VOG was necessary for the work. The employer could demonstrate that its clients (including insurers and customs) required this, and the employer also had to have its employees screened by means of a VOG because of certain permits / certificates.

Do you require a VOG from employees? Then consider a resolutive condition in the employment contract in case the employee does not come over the bridge.

Read the full ruling here

By Höcker, Netherlands, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact netherlandslabor@transatlanticlaw.com

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