A divorce, two young children and then starting a new job. An employee therefore agrees with his new boss that he will get dad hours: leave early on Tuesday afternoon, start later on Wednesday. Ten years later, an argument still arises about the agreement: was it temporary or forever?
In October 2009, the man is sitting at a restaurant table with his new employer, an export company in Barendrecht. He explains the situation: he recently divorced, lives alone and says that his children are at his house every Tuesday afternoon after school until Wednesday morning before school.
These are young children who are still in primary school. They are ‘too young to be left home all alone’. Whether the company might be willing to accommodate him so that he can take them to school and pick them up.
This is not a problem for the management, because it is ‘in a difficult period’. Not only because of the home situation, but also because he left his old job in an unpleasant way.
That is why he can leave the office at 2:30 PM on Tuesdays and does not have to start until after 9:00 AM on Wednesdays. However, he will remain available to customers, it is agreed. “A stable home situation is very important to us,” the company said.
Salary reduction
The arrangement seems to have run smoothly for years. But that changes in 2018: there is a disagreement about the agreement. The man’s children are now almost ten years older. They are no longer in primary school, can easily stay home alone and no longer need to be picked up or dropped off.
That is why the company has decided to reduce his salary by 5 percent as of January 1, 2018. The employee disagrees. He does not see the arrangement as a temporary solution, but as a permanent agreement without an end date, because he works a lot of overtime. He will make up those hours later, he says, so a salary reduction is unjustified.
The case recently ended up before the court in Rotterdam. Because it concerns an agreement from years ago, the judge gives both parties an assignment to prove the case.
The employer must demonstrate that the arrangement is temporary and only applies while the children are still young. The employee must prove that he will make up the missed hours later.
Testimonials
The company comes with testimonials from the CEO, the financial director and a colleague within the company. Two directors say the agreement has been in place since the employee was hired. That’s why he was allowed to leave earlier and start later at those times, but according to the management, ‘as long as the children were too young to stay home alone’.
As long as the children were too young to stay home alone
A direct colleague confirms that reading. According to him, the department is told that the adjusted working hours are intended to enable care for the children.
The employee comes up with a different reading. He says that he often worked long hours and that the arrangement is more of a flexible compensation for overtime. According to him, it is separate from picking up and dropping off his children.
Not convincing
However, the judge finds the man’s explanation less convincing than that of the company. Because if it is indeed a flexible appointment without an end date, why does the man always work on Tuesday afternoon and not in the office on Wednesday morning, he wonders.
During the lawsuit, the employee acknowledges that he initially picked up his children from school and dropped them off at those times. According to the judge, this fits exactly with the company’s explanation.
The judge therefore concludes that it has been sufficiently proven that the arrangement was temporary. Because the children had not been in primary school for quite some time in 2018, the reason for the appointment no longer applies. The employer may therefore adjust working hours and reduce the salary by five percent.
Because the employee loses the lawsuit, he must pay the legal costs: 3,029 euros.
