Discontinuation of On-call employee Calls Rather Costly

After an employment dispute with an on-call employee a company decided to discontinue calling-upon the on-call employee. This decision turned out to be very costly for the employer: the on-call employee did not leave it at that, and successfully submitted various claims with the Sub-district Court.

On July 5, 2022, a company entered into a zero-hours contract with an employee for a period of one year. The employee was the daughter of the company's HR-director and started working as an HR employee. In April 2023, the financial director asked the on-call employee for further specification of the hours she had claimed over March 2023. When this specification was not provided, the company only paid 26 of the 73 hours claimed: 13 hours during which the on-call employee had worked at the company and, out of goodwill, another 13 of the hours that the on-call employee claimed to have worked at home, despite the fact that it was not even certain whether the employee had permission to work from home. Payment of the 26 hours would be related to the on-call employee’s output in the form of a handbook for the payroll administration. By email of April 19, 2023, the on-call employee was informed that she no longer needed to spend any hours on the handbook, nor on other activities.
When the on-call employee did not leave it at that, and started proceedings before the Sub-district Court, the employer had a rude awakening.
The employer disputed the number of hours worked as, according to the employer, being disproportionate for drawing up the handbook and he even mentioned fraud. In the absence of a time administration, which, according to the Sub-district Court, the employer should have provided, the Sub-district Court relied on the hours registered by the employee. Besides, until February 2023, the employer had always approved the hours the employee had claimed.
The fact that this approval was actually given by the employee's mother did not preclude this, according to the Sub-district Court. The employer had insufficiently substantiated the hours claimed by the employee and, for that reason, had to pay the wages for the claimed hours over March 2023.
As for April, the employer had to pay wages until April 19, 2023, the date on which the employer had stated that he no longer wanted to make use of the client's services. The amount of this wage was based on a legal presumption on the average of the preceding three-month period. The employee had requested to have the wage based on the preceding eight-month period, but the Sub-district Court found that the employee had not provided sufficient grounds to deviate from the three-month period set-out in the law.
Due to late payment, the employer also had to pay a statutory increase of 50% on the wages over March and April 2023.
According to the Sub-district Court, the employee was entitled to assume the announcement that her services would no longer be needed as a summary dismissal. Therefore, the employer had to pay compensation to the employee, which, under the law, was fixed at the salary that the employee would have received up to the final date of the employment contract on July 4, 2023. The Sub-district Court added that it would also have been the employer’s obligation to pay this if the employee had not summarily been dismissed, because a zero-hours contract obliges the employer to offer work if work is available. The only reason why the employer had not offered work was, because an employment dispute had arisen. According to the Sub-district Court, there was no evidence that there was no work for the employee. As a result, the employer still had to pay the transitional allowance as well.

A counter request by the employer to have part of the wages repaid because the employee had claimed nine hours per day whereas a working day consisted of eight hours only, was rejected by the Sub-district Court, because the employee had declared that she continued work during the breaks , whereas nothing had been agreed about having breaks.
The Sub-district Court also ordered the employer to pay the extrajudicial collection costs and compensation for the legal costs.
In total, the employer had to pay the employee over € 10,000, payroll taxes and statutory interest excluded.

Even though it does not follow from the Sub-district Court’s decision, the circumstances of the above case suggest that the employment relationship between the employee's mother and the company had been disrupted and that in its aftermath also a conflict had arisen with the daughter, whom the mother had employed as an on-call employee.
Regardless of how matters stand, the Sub-district Court’s decision highlights the risks employers run if they continue on-call contracts after the first six months of the contract have expired, especially if they stop calling upon these employees then.
Once six months have passed, the law no longer leaves scope for “only paying wages if the employee works”, and currently the law sufficiently provides on-call employees with tools to claim the wages due.