When can an employment condition (not included in the employment agreement) be claimed by an employee?

Suppose that an employee has Wednesday afternoon off for years already, while nothing about it has been agreed in his/her employment contract. After a period of time, the employer mentions that the afternoon should be spent on working again. Is the employee obliged to do so? Or has this ‘habit’ ensured that it should be regarded as a condition of the employment agreement, and the employee is thus entitled to it?

Arguments can be considered from both sides. For example: the employer has always allowed it as a favor to the employee, but never intended to provide the employee with a right to it. But from the employee’s side, it could be stated that he/she has been given expectations by this continuing behavior, and for example adjusted his/her private life to it. How should this situation be handled?

Six points of view

The Supreme Court has recently judged in a similar case. In such case, an employer periodically paid a salary increase to a number of employees, which was not agreed in their employment contract. At a certain point of time, the employer wanted to make this automatic and periodic salary increase dependent on the assessment outcome of the employees.

However, was it allowed to unilaterally make this change? Or was there, due to this ‘habit’, an acquired right of the employees, to object against the employer for the unilateral change? To answer this question, the Supreme Court indicated that six points of view should be considered:

  1. The content of the course of action;
  2. The nature of the employment contract and the position of the employer and the employee towards each other;
  3. The length of the period during which the employee acted according this course of action;
  4. What the employer and the employee declared (or didn’t declare) to each other regarding this course of action;
  5. The advantages and disadvantages for the employer and employee arising from the course of action;
  6. The nature and extent of employees to whom the policy has been followed.

What does it practically mean?

In general, it is (still) unclear how to apply these six viewpoints of the Supreme Court in a concrete, specific situation. Lower courts will have to provide further, concrete interpretation on these points of view.

Meanwhile

In most companies it is the order of the day: that certain, not agreed employment conditions are nevertheless awarded to employees. Although generally formulated, the abovementioned six viewpoints can already be used to determine a strategy in most practical situations. We also advise to do so! Of course we are happy to be of service.