On-call employee refuses an offer of fixed hours? The wage liability remains entirely with the employer.

Key point for employers: even a flexible worker who repeatedly refuses the mandatory offer of fixed working hours may still – retroactively – invoke the presumption of working hours. This increases the wage risk for employers using on-call or min/max contracts.

What you need to know
The Supreme Court confirms that two statutory regimes apply strictly alongside one another, with no mutual restriction.

1. The annual offer of working hours
   After twelve months, you must make an offer for fixed working hours equal to the average over the preceding year. If you fail to do so, this gives rise to an independent right to wages.
2. The presumption of working hours (art. 7:610b Dutch Civil Code)
   An employee may at any time claim that the scope of the work is presumed to equal the average over the past three months. This protects employees against long-term uncertainty.

The key question in this case: can an employee who consciously chooses flexibility and repeatedly rejects offers, later claim fixed hours by relying on the statutory presumption?

Case summary
A taxi driver with a zero-hours contract twice refused an offer for fixed working hours. During the pandemic, his work mostly came to a standstill. Later, he invoked the statutory presumption and claimed wages based on 42.5 hours per month.

• District Court: wages granted as from the date of invocation.
• Court of Appeals: no wages retroactively due to voluntary refusal.
• Supreme Court: reverses this ruling.

The Supreme Court: refusal is irrelevant
The Supreme Court confirms that:

• the mandatory offer and the statutory presumption are entirely independent,
• refusal of the offer does not restrict the presumption,
• the employee is always entitled to invoke the presumption, even retroactively,
• refusal only means the offered fixed scope does not apply, nothing more.

The Court of Appeals therefore misinterpreted the law.

Implications for employers

1. Refusal does not shield against risk
   An on-call worker who prefers flexibility for years may still claim:
   “My average deployment over the last three months constitutes the working scope.”
   This claim can have retroactive effect.
2. Record-keeping requirements intensify
   The presumption is rebuttable, but only with a concrete and consistent record. Employers must be able to show that peaks do not form a structural pattern. Without proper substantiation, incidental busy periods or replacement hours are quickly regarded as structural.
3. Continue to make the annual offer – and document it
   The offer remains mandatory, and the wage risk for failure remains high. Carefully document offers made, responses received, and actual deployment. Monitoring working patterns is essential, even in case of refusal.
4. Review your flexible workforce
   This ruling confirms a broader trend: structural work does not belong in on-call contracts. Review your zero-hours and min/max contracts for risk, deployment patterns, and strategic workforce planning.

What now?
The “comfort” previously afforded by a refused offer no longer exists. Actual deployment determines the risk. Only a robust record and a well-designed flexible workforce structure provides assurance.
If you are in doubt about the organisation of your on-call workers or the fixed hours that might arise, we can ensure compliance. Contact us.