Netherlands Update: “Incidental overtime does not result in a new scope of work”

An employee of a flower shop will be employed on 1 April 2020 on the basis of an employment contract for 32 hours per week. Exactly in the first three months, the madhouse is in the flower shop. The Netherlands sent each other flowers en masse to encourage each other during the pandemic. Those months also included traditionally busy flower days, such as Mother’s Day, Easter and Secretary’s Day, according to the subdistrict court judge.

The employee worked a lot of overtime in those first months. She worked an average of 49 hours a week in the months of April, May and June. From July it became quieter again and in August it was fairly normal. During that period, however, she will also become incapacitated for work and will report completely ill from 8 October 2020. The employer neatly pays her salary based on 32 hours per week. The employee does not agree with that. She takes the position that she has worked structurally more hours. On the basis of the legal presumption, Article 7:610b of the Dutch Civil Code, she is entitled to the salary for 49 hours per week.

The subdistrict court makes short work of the claim. The employer was able to prove that there was occasional overtime, coincidentally in her first three months of her employment. There was therefore no question of a representative period for determining the scope of work. The legal presumption was therefore refuted by the employer.

Please note: an employee with a fixed number of hours can therefore also invoke the legal presumption if there is a structural exceedance of the agreed hours.

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

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

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