Background
How one lawsuit against the university can have major consequences
A Leiden lecturer contested his third temporary appointment and the court ruled in his favour. What does this ruling mean for all the other lecturers with a temporary contract? ‘This is a good thing for everyone who is getting strung along.’
Anoushka Kloosterman
Thursday 21 October 2021
Illustration Silas

The university is ‘pushing the limits of the system’, is ‘reluctant to engage staff for an indefinite period of time’, leaves employees ‘with an uncertain future’, and this system creates, not only at universities, ‘a division in society’.

That is what the judge had to say about the staff policy at Leiden University – as well as at other universities – before the summer, during a lawsuit filed by lecturer Arnout van Ree, who argued that his third contract extension was supposed to be a permanent contract. The university claimed that this was not a third contract extension, but rather an amendment of his second one. No new contract means no right to a permanent appointment, was the reasoning behind this. If at all possible, lecturers should not be given permanent contracts – that is the university’s policy.

The judge had little to say about this and soon, the focus of the hearing was no longer just on the Van Ree case, but also on the contract extensions of his colleagues who, under an exception clause of the collective labour agreement, had been given an extension of four years. Usually, you can only work on the basis of temporary contracts for up to two years.

UNCERTAIN FUTURE

‘Please explain to me in plain language why it is necessary to leave people in uncertainty for four years’, the judge asked the university during the hearing. He referred to the exception clause as ‘a nice sentence’ with ‘a lot of words that say little’. He also dismissed the university's defence that this is simply staff policy: ‘The fact that it's on paper doesn't mean that it’s right.’
 
This criticism was included in the ruling which was published in the summer. ‘The subdistrict court judge would like to point out that Leiden University is pushing the limits on the possibilities of the system’, he writes, for example. And: ‘a large number of employees are left with an uncertain future and a division is being created in society – all under the guise of a “flexible shell”.’
 
‘As considered above, this practice, which is widespread in the Netherlands and is even used within government and the judicial system, is not in agreement with the principles of the Directive.’ In this case, the ‘Directive’ refers to the law that prescribes how many consecutive temporary contracts you may be offered.

'Under the guise of a “flexible shell", a division is being created in society'

‘As considered above, this practice, which is widespread in the Netherlands and is even used within government and the judicial system, is not in agreement with the principles of the Directive.’ In this case, the ‘Directive’ refers to the law that prescribes how many consecutive temporary contracts you may be offered.

The subdistrict court judge cannot decide whether the university was justified in extending those contracts in 2018. That falls to the administrative court. What the judge could do, in his own words, is ‘count’: how many times has Van Ree's contract actually been extended? One, two, three times. And that is a permanent contract. Thus, Van Ree was proven right.

His lawyer Twan Kersten had not initially predicted this, he says in retrospect. ‘I said: “I'm not sure. You know what? We'll bet on it.”’ In hindsight, he admits that the contents of the judgment reflect the critical attitude of the judge.

‘It's a favourable ruling for the clients and the university has complied with it sportingly. The only “negative” thing, so to speak, is that it cost me a bottle of wine.’

LEGAL CONSEQUENCES

Casual Leiden, a university action group dedicated to more permanent contracts and better working conditions, felt empowered by the ruling. ‘We were very happy about it’, assistant professor Judith Naeff says. ‘Not just about the ruling itself, but especially because the judge expressed his views on the wider issue of temporary contracts and the “flexible shell”. Not only regarding the university, but also regarding his own employer.’
 
But what is the actual impact of this criticism? Can you go to court, present such a ruling to the judge and say that another judge disapproves? Does this have legal consequences?
 
Kersten: ‘The answer is both yes and no. Yes, of course you can take this judgment to another judge. No, because this is an individual court case, which means that the university can argue: this judgment only concerns Van Ree and not any other cases that might involve other issues. In the Dutch legal system, we don't follow precedents like in some Anglo-Saxon countries, except if the Supreme Court has ruled on something. However, judges do consider earlier judgments.’
 
Outside the courts, the ruling seems to have stirred things up. Naeff thinks that now ‘is a good time’ for people who ‘have been strung along for a long time’ to pursue a permanent contract. ‘We know of cases where the employee eventually did get a permanent contract from their institution. It is our impression that the university doesn't want to go to trial again.’
 
Kersten confirms that he has been approached by other university employees. One of them wrote an urgent letter calling on the Van Ree case and was given a permanent contract, without further proceedings.

'This could "have negative consequences" in the future'

However, Naeff fears that this could also ‘have negative consequences’ in the future, should the university decide to no longer use the clause to give employees a four-year contract. ‘They can also say: we will no longer hire people for four years, but rather for two years, to avoid hassle. That's the risk for the employees, because four years of employment is better than two. That's why it's important that we keep on campaigning and pushing for change in the entire staff policy.’

WAGING WAR

Initially, Kersten found the Van Ree case ‘legally problematic’. ‘I wondered why Van Ree hadn't lodged an objection. But he was very realistic in that respect, and I can understand that you wouldn't do that if you were given a contract with a duration period that's two years longer than expected.’
 
Ever since this court case, he has been speaking to university employees more often, outside of Leiden as well. ‘People consistently work more hours than stated in their contracts, which they can demonstrate with schedules. I come from a world where people firmly defend their rights and I have noticed – and I don't mean this in an unnecessarily critical way – that people in the academic world tolerate quite a lot. I'm not saying that they should start waging war against the board tomorrow, but many of them think: “Oh well, I can work on my research, and I want my PhD, so I'll just let it go.”’

YOUNG ACADEMICS WARN: REVOLVING DOOR REPLACED BY OPEN DOOR

In a recently published position paper, Young Academy Leiden (YAL) shared its concerns and advice on the university's career policy. The young academics are concerned about the excessive use of temporary contracts, but also about the lack of promotion opportunities for people who do have a permanent contract.

Annemarie Samuels, the Chair of YAL, says that employees are no longer faced with a so-called revolving-door system, but rather with a ‘hard exit’. ‘We now see that, instead of receiving another temporary contract after a six-month break, people aren't rehired at all. The revolving door has made way for an open door. That's not a solution.’

They are also worried about the so-called ‘superstar’ model: researchers who bring in a lot of money can do more research, bring in more money, and so forth. ‘That's why we propose the implementation of rolling grants: a broader grant available for everyone. Currently, young researchers waste a lot of time on failed proposals.’

Among other things, YAL calls for other forms of recognition and appreciation, diversification of career paths so that academics are no longer expected to be good at everything, and clearer communication. Lack of clarity is a major issue. The university needs to be transparent about future perspectives, even if there are no prospects of a permanent contract.’

Ultimately, it all comes down to one thing: more money. ‘In the larger context, we need a significant financial push. It's a structural problem caused by underfunding and competitive grants.’