Beer mat, signed letter or collective labor agreement: prerequisites for a valid employment condition

A binding agreement on wages, written on a beer mat? Is that possible? The answer is: yes. An employee, a football player, was able to point to a wage agreement that had been written down on two beer mats and a signature expert determined that the text in question was ‘real’. According to the judge (on appeal), the employee was thus able to collect back wages amounting to approximately € 11,000. He was also reimbursed for his lawyer's fees and the judge fined the employer for late payment of wages. Since the agreements could be defined as “dirty money”, there is a chance that the employer still received a visit from the Tax Authorities. The ruling raises the more general question: when are agreements between employer and employee binding?

Verbal, written or a piece of paper?

In principle, every agreement between employer and employee is binding, whether agreed verbally or in writing. Of course: if it is on paper, preferably with a signature underneath, then the proof is easier to obtain. It is therefore always recommended to do so. No employer wants the verbally agreed annual contract to be disputed by the employee who claims that a permanent contract applies.

But it is a misunderstanding that everything must be in writing to be valid. In fact, the employment contract itself does not even have to be in writing – as soon as someone works under the authority of someone else, for wages, there is an employment contract. So you can even have an employment contract without knowing (or desiring) it. This happens regularly, for example with self-employed people who (so) turn out not to be. For example, the following matters do not have to be in writing to be valid agreements:

• Job description

• Wages (although the lower limit is the statutory minimum wage)

• Amount of holidays (idem)

• Working hours

• Number of hours (full-time or part-time)

As you can clearly see: the most important matters do not even have to be recorded in writing to be valid. Nevertheless, generally you’ll want to have these matters in writing, and I am not aware of any employment contract that does not mention these matters. Although there are often no formal requirements, the law nevertheless stipulates that some agreements require a written record. Examples include:

• A probationary period

• A non-competition clause

• A penalty clause

• A change clause on the basis of which the employer can adjust the employment contract (although change is sometimes possible without such a clause)

• An interim termination clause (with which, for example, an annual contract can be terminated prematurely)

The following applies to these clauses: no writing, no stipulation. If you look closely, these are clauses that can significantly affect the employee's legal position. It is for this reason that the employer requires such a clause to be in writing.

Collective labor agreement or employment contract?

Many employers are bound by a collective labor agreement, which includes the abovementioned themes you usually find in employment contracts. The question is whether an employer has met the obligation to stipulate in writing if the relevant clause is included in a collective labor agreement, but not (also) in the individual employment contract. Sometimes inclusion in a collective labor agreement is enough: a probationary period in a collective labor agreement is valid, even if it has not been mentioned again in the employment contract itself. This does not apply to a non-competition clause; that clause must be included in the employment contract. The legislator considers it to be important that the employee is aware that he is signing for such a clause. However, case law shows that an employment contract may (explicitly!) refer to a collective arrangement that contains a non-competition clause: if the employee signs for agreement, he is still bound by that clause. A change clause may be included in a collective labor agreement, but also in another arrangement to which the employee is bound. Reference to this clause / arrangement in the employment contract is, int his situation, not necessary. The requirement of writing therefore has quite a few variants. 

What Flott can do for you

If you want to be sure whether a particular agreement is valid, but also whether you can change or withdraw it, or if you are not sure what requirements are imposed on an agreement – verbal, written, in a collective labor agreement or something else – please feel free to reach out. Flott has many years of professional experience with all types of individual and collective clauses in employment contracts. In case you need legal advice, send an e-mail to info@flott advocatuur.nl, or call (++) 31 (0)6 34056599. Relevant information can also be found on the website: www.flottadvocatuur.nl.