Recht op tewerkstelling: terug naar de bron Naar een terughoudender beoordelingsmaatstaf door de (lagere) rechter en naar een gelijke toepassing hiervan binnen arbeidsrechtelijke driehoeksverhoudingen

Does the employee who has been suspended claim that he should be admitted to work?

Dutch lower courts take as a starting point that the employee has a 'right to work' by virtue of the employment contract. However, the Dutch Supreme Court applies a more cautious criterion. In the Supreme Court's view whether a right to work exists in a specific case depends on the nature of the employment contract, the work agreed upon and the special circumstances. Another point is that the employee's right to perform the work as accepted by the lower courts can only be invoked against the (contractual) employer and not against a client or principal of the employer. As a result, an employee working within a triangular employment relationship - agency work, secondment, payrolling - does not have this right to be admitted to the work as accepted by the lower courts.
In this article, the authors argue, on the basis of the legislative history, case law of the Dutch Supreme Court and the (European fundamental right to) freedom to conduct a business, for a different, more restrained criterion for the assessment of the claim for admission to work of the employee who has been suspended than the criterion currently applied in lower courts. In addition, the authors argue that, contrary to what is currently the case, the same (more restrained) criterion must also apply to the employee who is employed by a client of the employer within a triangular employment relationship.