New employee, hidden risks: screening during onboarding in the Netherlands

Bringing a new employee on board involves a range of practical steps, including screening. Recent news stories highlight just how much can be at stake here. Think of a pilot who flew for years on falsified papers, forged diplomas or Certificates of Conduct (VOGs) in healthcare, or anesthesia assistants who turned out not to hold the right qualifications during operations – examples that go to the heart of an employer's safety, quality, trust and reputation. The need for oversight, however, does not mean an employer can request unlimited information. Screening must take place within clear legal boundaries, shaped by employment law and privacy law.

The following article offers employers practical tips on requesting VOGs, diplomas, employment testimonials and references from prospective employees.

Certificate of Conduct

Can an employer request a Certificate of Conduct from a prospective employee? A VOG confirms that a person's criminal record raises no objection to them holding a specific role. 

Under certain conditions, this is permitted from both a privacy law and an employment law perspective. Under the EU’s General Data Protection Regulation (GDPR), any processing of personal data requires a valid legal basis. In some sectors, such as education and certain healthcare roles, requesting a VOG is a legal requirement. Outside those sectors too, an employer may have a legitimate interest in screening prospective employees for specific roles such as those involving access to sensitive information or financial resources. In these cases, employers should ensure the interest in screening is weighed against an employee's right to privacy and carefully document the reasoning.

Regarding timing, from an employment law perspective it is preferable that the candidate has the VOG in hand before signing the employment agreement. If not feasible in practice, the employer should consider adding a condition subsequent clause (ontbindende voorwaarde) in the employment agreement. This does, however, carry some risk since such a condition can cut across the closed dismissal system, which means strict requirements apply. Employers should draft the condition carefully to avoid issues.

Diploma

Diplomas are often requested as part of pre-employment screening. In some cases, verifying a diploma is a legal requirement. In others, the employer may have a legitimate interest in doing so. In all instances, a diploma must be verified as genuine. For diplomas originating in the Netherlands, the DUO diploma register is a practical way to check whether a diploma was actually obtained. Employers do not have direct access to this register, so the candidate can perform this step by requesting an official extract from the diploma register via "Mijn DUO" and share it with the employer, which verifies that a diploma is genuine and issued by DUO. Employers should ask for a digital extract in PDF form. A paper extract can take several weeks to arrive and involves extra costs for the candidate. 

For digital diplomas recently registered with DUO, the DUO online diploma check can be used. This check verifies the file type and authenticity certificate although not every valid diploma appears in the register such as certain pre-master's programmes, PhD trajectories or diplomas for industry-specific training. If there is a suspicion of fraud, contact DUO directly.

For foreign diplomas, a diploma evaluation can be requested from the Dutch institute Internationale Diplomawaardering (IDW), which provides information on the foreign diploma, including the Dutch education level it is comparable to.

Employment testimonial and references

A CV offers much information, but it is often checked against employment testimonials (getuigschrift) and references (referenties) from previous employers, which are useful but must be conducted carefully within the bounds of privacy and employment law.

Employment testimonials are governed by Section 7:656 of the Dutch Civil Code. At the employee's request, a former employer must provide a testimonial stating, at a minimum, the nature of the work performed, the working hours, and the start and end dates of employment. Information on performance, the way the employment ended, or the reason an employer  terminated an employment agreement should be included only if the employee has specifically requested it. This means that employers should be cautious about drawing conclusions since certain information may be missing simply because the employee never asked for it to be included.

There is no specific statutory framework for references from previous employers or contacts. This does not mean that anything goes where references are concerned. The general legal framework, including the GDPR and the employer's duty of good employment practice, sets clear limits on the information that can be communicated. Ask for permission in advance before approaching a referee who was not put forward by the candidate, only approach referees the candidate has provided, ask questions relevant to the role, and do not record unnecessary or sensitive information. A former employer is not obliged to provide a reference, but if they do, it must give a fair and balanced picture. If you receive negative feedback, assess whether it is specific, relevant and up to date, and give the candidate the opportunity to respond.

Conclusion

Pre-employment screening is possible, but carries legal considerations. It is important to be transparent with prospective employees and clearly state in the vacancy whether screening will be applied and the forms of screening that will be used. 

For detailed advice on pre-employment screening, contact your CMS client partner or the CMS experts who contributed to this article.