On 21 November 2025, the Supreme Court ruled on the situation of long-term hiring of an agency worker. The agency worker was hired for 13 consecutive years through various agencies by Unilever and its legal successor Upfield. The agency worker claims that he has a permanent employment contract with Upfield and refers to Article 5 of the Directive on Temporary Agency Work, which has been implemented in the Netherlands in Article 8 of the Dutch Act on Agency Workers (the Waadi).

In short, Article 5 of the Directive on Temporary Agency Work stipulates that abuse of the temporary agency work situation must be prevented, in particular the prevention of successive assignments in order to circumvent the provisions of the Directive. After all, the main rule of the Directive on Temporary Agency Work is that agency work is temporary, despite the fact that no maximum duration is specified in the Directive. Therefore, according to the European Court of Justice (ECJ), the national court must determine in each specific case whether there is a situation in which the temporary nature of agency work is being circumvented. In the Daimler judgment (CJEU 17 March 2022, ECLI:EU:C:2022:196), the CJEU outlined the circumstances that the national court must take into account in order to assess whether there is abuse. These circumstances are as follows:

  • Whether the duration of the agency worker's activity at the hiring company is longer than usual, taking into account all relevant circumstances, including in particular the specific characteristics of the sector;
  • Whether the agency worker is performing successive assignments for the same hiring company;
  • If the hiring company cannot provide an objective explanation for the use of successive agency contracts, especially when it is always the same agency worker who is hired by that company.

The court of appeal had ruled that there was one single long-term assignment of the agency worker to Upfield. The Supreme Court considers this incomprehensible, as there were in fact several temporary contracts with different agencies. Furthermore, the court of appeal had ruled that the long duration of the assignment was no more than an indication of abuse. However, the Supreme Court considers that abuse must be assumed if the duration of the assignment exceeds what, in view of all the circumstances, must be regarded as “temporary”. The long duration is therefore not just an indication of abuse, but is already regarded as abuse if the relevant circumstances do not explain the long duration. Finally, the court of appeal had ruled that Upfield had an objective explanation for the long-term hiring, being the need for a flexible workforce, the fact that Upfield had hired other agency workers and the fact that Upfield had offered the particular agency worker a one-year contract, which the agency worker had refused. However, the Supreme Court ruled that the need for a flexible workforce was implausible, given that Upfield had hired the agency worker for 13 consecutive years. Upfield's other arguments were deemed insufficient to accept as an objective explanation.

Conclusion

The Supreme Court's ruling does not mean that every long-term hiring is by definition an abuse. That depends on the specific circumstances of the case and the extent to which there is an objective explanation for the long-term hiring. The Supreme Court does not give any ruling about the legal consequences of possible abuse. The Advocate General does refer to these consequences in her legal opinion. She states that if it appears that the long-term, hiring has been used for the sole purpose of circumventing the objective and rationale of a statutory provision, this generally constitutes abuse in principle. If this occurs, the hiring can be disregarded and it could be ruled that there is a permanent employment contract (established at some point), possibly with a party other than the original employer (i.e. the agency). Focusing on the case in question, this means, according to the AG, that if the referring court finds that there has been abuse, it will have to examine carefully, on the basis of the specific circumstances of the case, whether a permanent employment contract with the hirer (Unilever or Upfield) was established at any point in time.