Acquired Rights
Employees are often given items by their employer for use. Think of a company car, a mobile phone (with subscription), or a laptop. Sometimes, conditions apply — for example, the employee must be actively employed, meaning not on sick leave or suspended. Or the use may be tied to specific job duties. The question then arises whether the employer is allowed to take these items back. It may be the case that the employee has actually acquired the right to use them.
Secondary Employment Benefits
The use of, for example, a phone and laptop may be explicitly agreed upon in the employment contract. In that case, these are considered secondary employment benefits, and the employer cannot simply revoke them. The use of the phone and laptop has, in effect, become part of the employee’s compensation package. What the parties have agreed upon between themselves is binding — it has the force of law.
Implied Agreement
However, it is possible that the arrangement was not explicitly agreed upon. The employer may simply lend out the items without making any specific agreements. Unfortunately, there are no strict rules governing such situations. The Dutch Supreme Court (Hoge Raad) has outlined in general terms what a judge should take into account when making a decision:
the nature of the practice;
the nature of the employment contract and the positions of the employer and employee in relation to each other;
the length of time during which the employer has followed this particular practice;
what the employer and employee have (or have not) stated to each other in connection with this practice;
the nature of the advantages and disadvantages that arise from the practice for both the employer and the employee; and
the nature and scope of the group of employees to whom the practice has been applied.
Consistent Use
Lower courts have shown that judges especially consider what exactly has been provided, for how long, and for what purpose. If, for instance, an employee has had the use of a car for a considerable period of time, and the car is also permitted for private use, the court is more likely to consider the car a secondary employment benefit — an acquired right. An example is a ruling by the subdistrict court (kantonrechter) in Utrecht. The employer demanded the return of the car because the employee was on sick leave. According to the applicable collective labour agreement (CLA), the vehicle had to be returned “if it was no longer needed for service purposes or if the employer requested it.” Nevertheless, the subdistrict court ruled that there was a pattern of consistent use, and that the employer had not made clear agreements regarding the use of the car. As a result, the use of the car had become, among other things, an acquired right.
Unilateral Changes
This shows that it is not easy for an employer to reclaim items from an employee if there are no clear and explicit agreements in place. “The fact that it is not written anywhere that the employee has a right to it” tends to work more in the employee’s favor than against them. This raises important considerations for many other employment conditions: if there is consistent use, the employer cannot simply make changes unilaterally.