Work in detention

Prisons

No duty to work, but a duty of care

Since the introduction of the Sentencing and Protection Act (Wet Straffen en beschermen), both the right to work and the duty to work have been abolished. Under Article 47 of the Custodial Institutions Act (Penitentiaire beginselenwet, Pbw), the institution may allow prisoners to take part in available work. The governor has discretion in this, but must carefully consider a request to work.

The starting point remains that every prisoner should be offered work, including those on the basic programme. The nature or short duration of detention may prevent this. Article 1a of the Prisoner Work Regulations (Regeling arbeid gedetineerden, Rag) sets out a duty of care: the governor must make efforts to provide work.

This duty of care does not apply, among other situations:

• during the first two weeks of detention;
• during the first eight weeks in an arrestee unit (arrestantenafdeling);
• in cases of ongoing exclusion because of behaviour at work, where the governor has decided this under Article 1a(2) Rag.

The principle of minimum restrictions applies to people in pre-trial detention, among others. Before the change in the law, the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) ruled that an admissions unit could not be excluded from work as a whole. The starting point remains that the basic programme includes work.

Behaviour, promotion and exclusion

Promotion here means becoming eligible for the enhanced programme (plusprogramma). Your efforts at work count towards this assessment. Not cooperating may prevent promotion, but does not necessarily do so: you can also show sufficient responsibility for your reintegration in other ways. The Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) confirmed this on 29 August 2022 (21/24256/GA).

On the enhanced programme, you may be given more appealing work with greater responsibility. If you do not make enough effort, you may be assigned simpler work. Anyone who can work but is unwilling to do so may be excluded temporarily or for a longer period.

Simply not taking part in work is no longer grounds for a disciplinary punishment under Article 50 Pbw. This distinction follows, among other decisions, from the ruling of the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) of 31 October 2022 (21/24324/GA): behaviour may count towards promotion and demotion without being punishable.

Exclusion must have a sound basis. In KC2022/025, a six-week exclusion was overturned: the alleged refusal to work had not been established, the disciplinary punishment did not provide grounds for exclusion under the local rules, and the head of Work was not authorised to make this decision.

What kinds of work, and how many hours?

Article 1 Rag distinguishes between:

• Workshop work (zaalarbeid): working together in a workshop or another designated space.
• Task-based work (taakarbeid): carrying out a task specified by the governor.
• Piecework (stukarbeid): making products in a shared workspace.
• Work outside the institution (extramurale arbeid): working for a third party outside the institution or attending a daytime education course there.

Examples include packing, woodwork and metalwork, cleaning, maintenance and laundry work. The governor decides which work you are eligible for (Article 2(1) Rag).

The house rules set the working hours. Under Article 47(3) Pbw, these must be in line with normal practice outside detention. Your detention and reintegration plan (detentie- en re-integratieplan, D&R-plan) states the type of work and the weekly hours (Article 3 Rag).

Prisoners work an average of twenty hours a week. The Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) has ruled that routinely offering participants fewer than twenty hours is unreasonable. A trial extending this to 32 hours was stopped: twelve extra working hours alone were expected to contribute too little to reducing reoffending, lasting changes in behaviour and sustainable employment.

Waiting lists and cancelled work

Where there is not enough work, the institution may use a waiting list. According to the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ), someone on that list may, in principle, not be locked in their cell during working hours for more than two weeks. Only exceptional circumstances can justify a longer period. After that, the governor must offer an alternative to being locked in a cell, as confirmed by the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) on 29 July 2024 (22/30689/GA).

An occasional cancelled work session does not immediately mean that the governor has failed in their duties. Where cancellations are frequent, this depends on the circumstances. Cancellations must not bring the daily programme below the minimum set by Article 3 of the Prison Rules Order (Penitentiaire maatregel, Pm). However, a brief departure from this may still be compatible with the duty to make reasonable efforts.

Where work is regularly cancelled, the governor must arrange replacement activities; locking prisoners in their cells in those circumstances breaches the duty of care. Simply continuing to pay wages under Article 5(c) Rag is not always sufficient compensation. This approach still applies since the right to work was abolished.

A case from 2019 also established that recreation offered in place of work could not itself be restricted as well. That ruling was upheld on appeal, but the instruction to provide work for all prisoners was not (R-19/3233/GA).

Illness and incapacity for work

If you are ill, tell the staff. The medical service will be involved and will assess what you can do. Article 42(3) Pbw requires the governor to have prisoners to whom this applies examined by a doctor or their replacement to assess their fitness for work.

A previous declaration of incapacity for work, whether issued before detention or at another institution, also leads to a fresh assessment. The institution's doctor makes an independent assessment, because prison work differs from work outside detention.

Anyone declared unfit for work does not take part in work. If lasting personal circumstances prevent you from working for a longer period, the governor must make efforts to provide an alternative programme during working hours as far as possible. Locking you in your cell is then not permitted. The Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) accepted a period of up to three months as a reasonable interpretation of ‘a longer period’ (9 April 2025, 23/36643/GA).

The label ‘limited capacity for work’ (arbeidsbeperkt) is not enough: it must be clear what you can still do. In KC2024/007, there had been insufficient investigation into whether adapted work was possible for a prisoner with an eye injury. Locking him in his cell was found unreasonable. He received € 100 in compensation; the management had to investigate the options and make a new decision within two weeks.

Older rulings about punishments after reporting sick relate to the former duty to work. In KC2018/030, a nurse's report without a doctor's decision was insufficient to justify a punishment of fourteen days' exclusion. Today, simply not taking part can no longer be punished through disciplinary action.

Pay and waiting allowance

For workshop work, task-based work and piecework, you receive work pay, task pay and piecework pay respectively (Article 2(2) Rag). Article 2(4) Rag governs the calculation of weekly pay.

The basic hourly rate was set at € 0.90 on 1 July 2021. Article 2(3) Rag requires annual indexation on 1 January. € 0.90 is therefore not necessarily the current rate. The Custodial Institutions Agency (DJI) publishes the applicable rate each year. Under Article 4a Rag, pay for work outside the institution is 300% of the basic hourly rate.

The money you earn is paid into an account. You can use it, for example, to pay for shop purchases or to rent a television or radio.

If you are not working, you may qualify for a payment to replace your wages, also called a waiting allowance (wachtgeld):

• Illness or incapacity for work: 80% of the basic hourly rate for each working hour recorded in your D&R-plan, under Article 5 Rag.
• First two weeks without an offer of work: you are also entitled to a waiting allowance during this period, under Article 5(d) read together with Article 6(1)(g) Rag.
• Waiting list due to insufficient work: anyone who has said they want to work receives 100% of the basic hourly rate for the waiting period.
• Pension age: anyone who does not work is eligible for 80% of the basic hourly rate under Article 7(2) Rag.

You may also receive a waiting allowance if you end up on the waiting list through your own actions, for example after a disciplinary punishment or an order measure (ordemaatregel). Work must then be included in your D&R-plan (Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ), 20 November 2024, 24/40110/GA).

In KC2022/017, a prisoner was wrongly denied a waiting allowance after signing up again. The governor had to investigate when she had signed up and started working again, and pay the amount owed.

Arrestees, pensions and days off

The arrestee regime (arrestantenregime) is a basic regime with a maximum stay of 56 days. Under Article 1(m) of the Regulations on the Selection, Placement and Transfer of Prisoners (Regeling selectie, plaatsing en overplaatsing van gedetineerden), arrestees include people whose convictions are final and who have evaded detention or failed to comply with conditions.

Although the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) previously required work to be provided for arrestees, the exception in Article 1a(1)(b) Rag has applied since 1 July 2021. During the first eight weeks, the governor does not have to provide work. Arrestees do not receive a wage-replacement payment for that period.

Reaching pension age does not automatically entitle you to an alternative programme. In a case under the earlier legal framework, locking a non-working prisoner of pension age in their cell was accepted. On appeal, the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) referred to Article 21 Pbw on limited association (beperkte gemeenschap) (R-19/4355/GA).

You do not have to work on Sundays or officially recognised public holidays (Article 8(1) Rag and Article 3(1) of the General Time Limits Act (Algemene termijnenwet)). If work is cancelled because of an officially recognised public holiday, a payment equal to the basic hourly rate applies under Article 5(b) Rag.

For other religious holidays and commemorative days, the minister may designate days off work. These are listed in the annual Circular on Days Off Work (Circulaire Arbeidsvrije dagen). You receive no pay or wage-replacement payment for these days.

Working outside: In-Made, Ex-Made and BBA

In-Made is the production company of the Custodial Institutions Agency (DJI), established in 2011. Around 8000 prisoners carry out various types of work for it. Ex-Made focuses on skills for work outside detention and suitable workplaces, where possible with the prospect of paid work after release.

To be placed in a low-security unit (beperkt beveiligde afdeling, BBA), you must be on the enhanced programme and have reintegration leave for work outside the institution (re-integratieverlof voor extramurale arbeid). A paid job is not required: according to a suspension ruling by the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ), unpaid work or a daytime education course may also be sufficient (2 July 2021, 21/21967/SGB).

If you do not make enough effort, or in other circumstances, the governor may withdraw this leave. Because the leave is a condition of staying in the BBA, this means you will be transferred back from the BBA to the institution.

Young offender institutions

For work in young offender institutions (justitiële jeugdinrichtingen), the relevant legal provision is Article 52 of the Young Offender Institutions Act (Beginselenwet justitiële jeugdinrichtingen).

TBS and the treatment of people subject to a TBS order

For work during the treatment of people subject to a hospital order (terbeschikkingstelling, tbs), the relevant legal provision is Article 46 of the Act on the Treatment of Persons Subject to a TBS Order (Beginselenwet verpleging ter beschikking gestelden).

Complaints about work

You can lodge a formal complaint (beklag) against a decision on your request to work. This allows an assessment of whether the governor made the decision carefully. Exclusion from work, being locked in your cell during working hours and failure to pay a waiting allowance may also be grounds for a complaint.

A general change to the daily programme is different. You can only lodge a formal complaint (beklag) about this if it conflicts with higher-level rules, such as Article 47 Pbw or Article 3 Pm. Otherwise, the substance of the complaint will not be considered: your complaint is then ‘inadmissible’ (niet-ontvankelijk).

According to the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ), 14 November 2024 (23/37555/GA), a change to the programme occurs when an activity is cancelled more than once and this has been announced or recorded in writing at least one week in advance, in the same way as the daily programme.

What does this mean for you?

• Do you want to work? Make this known and ask for a decision on your request.
• Check your D&R-plan: the recorded working hours matter for your programme and waiting allowance.
• Is work being cancelled? Keep a record of when this happens, whether you are locked in your cell and what replacement activities are offered.
• Are you unable to work for medical reasons? Report your symptoms and ask for clarity about what you can do, adapted work and replacement activities.
• Is your payment incorrect? Compare your working hours, time on the waiting list and payment details.
• Have you been excluded? Ask for the reason, the applicable rules and who made the decision. These details may be important when lodging a formal complaint (beklag).

This page draws on the expertise of Mr. S.P.C. (Stan) Broekmans, a specialist in detention law at Hameleers Antonides Advocaten. Do you have a question about your own situation? Please get in touch; an initial assessment is free.

Other topics

• Arrestant detainees
• Belongings
• Camera surveillance
• Compensation
• Complaints procedure (beklagprocedure)
• Compulsory treatment