Misbruik van uitzendovereenkomst indien geen sprake is van tijdelijk werk

In the Upfield decision of 21 November 2025, the Dutch Supreme Court held that the Temporary Agency Work Directive requires agency work to be temporary, regardless of whether it concerns one continuous assignment or a series of successive assignments with the hirer. A general need for a flexible workforce does not justify almost thirteen years of uninterrupted hiring of the same agency worker. If the assignment lasts too long without an objective justification, this constitutes abuse. Under Dutch law, a temporary agency contract is converted by the passage of time into an open-ended employment contract with the temporary work agency. At the same time, pursuant to the increasingly expanded equal pay requirement in Article 8 of the Waadi, the agency worker remains entitled to the same employment conditions as those applicable to employees directly employed by the hirer. However, according to the Supreme Court’s reasoning, none of this addresses the abuse it identified in the form of the long-term assignment of the agency worker to the hirer. In my commentary on the Upfield decision, I note that the law does not provide a clear sanction for this abuse and that the Supreme Court leaves open what legal consequences should be attached to it. In my view, preliminary questions should be referred to the Court of Justice of the EU. The Temporary Agency Work Directive itself does not provide an answer, and the Court of Justice has not yet addressed whether the Directive’s objectives are achieved when an agency worker obtains a permanent contract with the agency, or whether the ultimate goal must still be a permanent contract with the user undertaking. I also address the question of whether the declaratory judgment sought by the agency worker in this case - that an employment contract exists with the user undertaking (Upfield) - could be granted by the Amsterdam Court of Appeal (to which the Supreme Court has referred the case).