Benelux: What are the formal requirements for an employment contract?
Under Dutch law there are no formal requirements for an employment agreement; it can be entered into in writing or orally. However, for certain provisions (e.g. probation period, non-competition clause, amendment clause or penalty clause) it is necessary to put them in writing.
An employer is also obliged to provide the employee with a written or electronic statement of certain particulars of the terms of employment within one month of commencing employment.
As a minimum, this should include:
- specific aspects regarding the employment if the employee will be working outside the Netherlands for more than one month,
- whether the employment agreement is with an agency or not,
- name and address of the parties,
- place of work,
- position or the nature of the work,
- commencement date,
- duration of the contract,
- holiday entitlement,
- notice period,
- working hours,
- pension scheme (if any),
- applicable collective bargaining agreement (if any).
Under Belgian law, in principle, there is no legal obligation for an employment agreement to be in writing.
Consequently, an agreement for an indefinite duration starts when the employee begins work. It would be advisable for all relevant work regulations and policies to be provided to the employee. In addition it is necessary to ensure that the employee is registered with the social security database, work accident insurer, any other fringe benefit service provider and payroll service provider.
According to Luxembourg labour law, an employment relationship must be evidenced in writing, must contain certain implied terms and should be entered into no later than the date of the first day of work.
The Labour Code further requires the employment agreement to include the following elements:
- identity of the parties,
- starting date of the contract,
- place of work,
- nature of work,
- daily or weekly working hours,
- normal working hours,
- notice period,
- trial period (if applicable),
- derogatory or complementary clauses,
- applicable collective agreements (if any),
- supplementary pension scheme (if any).
However, the absence of a written document does not necessarily affect the existence of the employment contract as an employee who has been hired without one can always prove an employment relationship exists before the Labour court. The absence of a written contract may create a number of uncertainties regarding the details of the working relationship, and where challenged the burden of proof with respect to the terms and conditions of employment will fall on the employer.
For further information or to discuss any of the issues raised, please contact Rina Driece on +31 10 224 64 24 at Loyens & Loeff, Netherlands.
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