On-call contracts: a flexible alternative to self-employed workers?

Looking for flexible staff, but prefer not to hire self-employed workers? Then an on-call contract is an option. Nevertheless, on-call contracts are less flexible than they seem at first glance. As an employer, you have to take into account a number of legal obligations. In this article, we list the most important rules.

Zero hours contract

With a zero-hours contract, the employee has no fixed working hours. The employer calls him when needed. The main rules:

• An employer must call the on-call employee in writing at least four days in advance. This can, of course, be done digitally.
• The employee must accept the call.
• Does the employer withdraw the call within these four days? Then the employee is still entitled to wages for that on-call period.
• An employer must pay wages for at least three hours per call, even if the employee works shorter hours.

Min-max contract

In a min-max contract, a minimum and maximum number of hours are agreed upon (for example, minimum 10 and maximum 30 hours per week). The on-call employee is paid at least for the agreed minimum. Until the maximum is reached, the employee must accept the call. Above the maximum, he may refuse.

When does entitlement to regular pay arise?

• After three months: If an on-call worker works for his employer for at least three months, he can invoke the legal presumption of employment status. This means he is at least entitled to wages based on the average number of hours worked in the past three months. An employee must claim this himself. This may also be claimed later and may also be retroactive.
• After 12 months: an employer must offer an on-call employee a contract with a fixed number of hours based on the average for the past year after one year. The employee is given one month to accept this offer. If you as an employer forget to make this offer, the employee is still entitled to the salary over the amount of the average number of hours over the past 12 months and can claim this salary retroactively.

Sickness and on-call contracts

• In the first six months, the employer does not have to pay wages in case of illness, provided it is stated in the employment contract. This is called the wage exclusion clause.
• Has no wage exclusion clause been agreed upon or does the on-call worker work longer than six months? Then he is entitled to wages if he becomes ill while on call. He is then entitled to wages for time he should have worked in the on-call period.
• Has the employee invoked a legal presumption of employment? Then when sick he is entitled to wages over this average

A wage exclusion clause also has the effect that the on-call employee cannot invoke the legal presumption of average scope of work as discussed above during the first six months because there is no obligation to continue to pay wages during those first six months.

Vacation

On-call workers accrue vacation days and vacation pay just like regular employees. An employer must also allow them to take leave.

Notice period

The notice period for an on-call worker is equal to the minimum notice period (usually four days). For the employer, the usual legal notice periods apply.

Pay attention to collective bargaining agreements

Some sectors have different collective bargaining agreements regarding on-call contracts. In some cases it is allowed to deviate from the legal terms. So always check whether specific rules apply within your industry.

Conclusion

On-call contracts initially offer flexibility, but after three months employees already gain more rights. After a year, you have to offer a fixed number of hours. This makes on-call contracts less flexible than they seem. Want to learn more about using on-call workers or have specific questions?  Please contact one of our  attorneys by email, phone or fill out the contact form for a free initial consultation.  We are happy to think along with you.