The Dutch Supreme Court has recently confirmed that temporary agency work must, by definition, have a temporary nature, as required by the European Temporary Agency Work Directive. This ruling is significant for organisations that deploy agency workers for long periods: a general need for flexibility is insufficient to justify prolonged use of agency workers.
The case concerned an agency worker who had worked almost continuously for nearly thirteen years at Upfield (formerly Unilever) as a production employee. According to Upfield, he filled temporary staffing gaps and formed part of the flexible workforce. When the factory closed in 2022, permanent employees qualified for benefits under the social plan, but the agency worker did not. He argued that he had performed structural work for many years and that the agency arrangement violated the Temporary Agency Work Directive. He therefore requested a declaration that he effectively had an open‑ended employment contract with Upfield, as well as claims for wages, damages, and entitlements under the social plan.
The district court and the court of appeal held that Upfield’s need for flexibility was sufficient to justify the long-term deployment, but the Supreme Court disagreed. If agency work lasts longer than can reasonably be considered temporary and there is no objective justification, this may constitute abuse of successive temporary agency contracts. The prolonged duration itself indicates a structural need, according to the Supreme Court. A general desire for flexibility is not enough.
Because the court of appeal applied the wrong assessment standard, the Supreme Court overturned its judgment and referred the case to the Amsterdam Court of Appeal. The Supreme Court left open which legal consequences should follow from violating the temporary nature requirement, meaning that the continuation of the case will be important for practice.
Although Dutch law does not specify a maximum duration for hiring agency workers at a single hirer, the Temporary Agency Work Directive stipulates that agency workers may not be used permanently. European case law further establishes that courts must assess whether successive assignments are being used to circumvent the temporary nature of agency work, especially because the directive aims to promote access to permanent employment.