In the past twelve years, the number of vacancies in the Netherlands has not been as high as it is now. On its website mentions CBS that the number of vacancies reached a new peak in the first quarter of 2019. At the end of March, there were 277 thousand vacancies. This surpassed the pre-crisis record number of 28 thousand vacancies at the end of 2007.
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| Mr. Tjeerd Hoekstra Lawyer at CMS |
The question employers face today is how to find and retain well-qualified personnel. If it is difficult to find qualified personnel because the pond from which to fish is too small, then the only alternative is to retain well-qualified personnel. In this context, it may be attractive or necessary to retain older employees in the company so that they can use their knowledge and experience.
An objection that is often raised against retaining older employees is that it would be expensive, for example because of (i) higher contributions to pension premiums, (ii) absence due to disability and (iii) a labour productivity that would decrease over the years. There are objections that are undeniably valid, but the employer can also remedy other objections by actively pursuing a policy of retaining older employees. The law has also offered more and more tools for this in recent years.
A distinction must be made between employees who have not yet reached the AOW retirement age – because although these may also be older employees, regular employment law applies to them – and employees who have already reached the AOW retirement age.
Actively involved
For the first group, it is advisable to implement a policy that is aimed at keeping older employees as actively involved as possible in the work process. This could involve flexible working with regard to working hours or workplace or – in good mutual consultation – an adjustment of the function or job tasks and the associated remuneration. The starting point for the employment conditions is that an adjustment may not be too abrupt. One could say that this is a new solution for the “older days” that were included in collective labour agreements or company regulations in the past and are now in fact no longer applied on the basis of equal treatment legislation. The difference with the “older days” is that today every employee has the same rights with regard to flexible working. This does not mean that the employer cannot promote the possibilities more actively to older employees who seem to need them.
For employees who have already reached the AOW retirement age, employment law offers a so-called light regime when it comes to a number of matters. For example, the number of fixed-term employment contracts that may follow one another has doubled (six employment contracts in 48 months). In addition, the obligation to continue paying wages in the event of illness and the associated prohibition on termination in the event of illness have been shortened to 13 weeks. To a certain extent, employees who have reached the AOW retirement age are also cheaper, because they no longer have to pay social security contributions or pension contributions and they cannot claim a transition payment upon termination of the employment contract. Finally, the employment contract can simply be terminated – without the intervention of the court or UWV – if it was entered into after the AOW retirement age.
The conclusion is that – from a theoretical perspective – objections to retaining (or hiring) older employees can often be remedied, or at least that a solution can be found. The principles are in fact sound. It requires commitment, attention and creativity to follow up on them in practice.
Nederlands