Employee or self-employed person – how can you tell?

Both the cabinet and the tax authorities do not want employees to work as contractors. As a principal, how can you ensure your contractor is not considered to be an employee?
When would it be better to conclude an employment contract to avoid hassle with the government?

“Greater security for employees and more protection for the self-employed”, Karien van Gennip, Minister of Social Affairs and Employment, said in her speech on 3 April 2023 on future-proofing the labour market. In the accompanying parliamentary letter, the Minister pleads for pushing back false self-employment, so that all actual employees will also receive the labour protection of employees. However, contractors will probably often wish to be self-employed because of tax benefits and the freedom it gives them.

This is why the qualification of a contract is of great importance to self-employed persons and principals. After all, employees have other rights and obligations than contractors, not to mention the risk of additional collection of payroll tax and social security contributions if it turns out that there is an employment contract instead of a contract for services, such as a management agreement, which also contains many labour law provisions. Despite several court rulings, there is still some ambiguity about when a work relationship qualifies as a contract for services or an employment contract. What needs to be considered and what needs to be taken into account?

Characteristics of an employment contract

Article 7:610 of the Dutch Civil Code lists the elements that constitute an employment contract:

• performance of work
• remuneration
• in service of (relationship of authority)
• for a given period of time.

In a contract for services with a self-employed person, one of these four characteristics must be missing. The most common deviations are that work does not have to be performed in person (i.e., no “performance of work”) and that the contractor is free to choose how to implement the assignment (i.e., not “in the service of”).

From intent of parties to actual implementation

For a long time, the Supreme Court took the position that the intention of the parties was essential to the qualification of a contract. Thus, if the parties did not intend to enter into an employment contract, the contract was not qualified as such. As of 2020, however, the Supreme Court has a different opinion. At that time, the Supreme Court ruled that the intention of the parties is not important for the existence of an employment contract. However, the Supreme Court does attach increasing importance to the actual performance of a contract to determine whether it meets the requirements of an employment contract. What circumstances does the court pay attention to?

Aspects

In the recent Deliveroo ruling, the Supreme Court provided a list of the circumstances that, among other things, may be relevant in determining whether it concerns an employment contract or a contract for services:

• The nature and duration of the work;
• The manner in which the work and working hours are determined;
• The embedding of the work and the person performing the work in the organization and the business operations of the person for whom the work is performed;
• The existence or absence of an obligation to perform the work in person;
• The manner in which the contractual arrangement and the relationship of the parties was established;
• The manner in which remuneration is determined and paid;
• The amount of such remuneration;
• Whether the person performing the work thereby incurs commercial risk;
• Whether the person performing the work behaves or can behave as an entrepreneur in the market.

These aspects show that consideration is given to what the parties have included in the employment contract, such as, for example, a clause indicating that there is no obligation to perform the work in person. However, the Supreme Court stated that, for this list, it is of importance for a contractual clause to have actual meaning. This had major consequences for the Deliveroo ruling.

Freedom of contracting and substitution

The Deliveroo ruling paid particular attention to the circumstance that the delivery drivers 1) had the freedom to report for work and refuse assignments, and 2) had the opportunity of being substituted. Precisely these elements were considered as reason to believe that there was no employment contract. After all, there was no relationship of authority and no work in person.

However, according to the Supreme Court, the freedom to refuse assignments does not prevent a contract from qualifying as an employment contract. It must be considered how labour is organized if the person involved does appear for work. Thus, the frequency with which assignments are accepted and the duration of assignment play a role.

Regarding the substitution possibility, the Supreme Court ruled it had to be seen how this possibility works out in practice. The actual meaning of the substitution clause for the party performing work is of great importance in assessing whether an employment contract exists. After all, even an employment contract may include the possibility of being substituted with the employer’s permission. If a substitution clause is included, but the contractor cannot be permanently replaced by someone else or the work cannot be performed by several substitutes at the same time, the actual significance of the clause is low. This indicates that it is not a contract of services, but rather an employment contract.

Model contract regarding free substitution

The Deliveroo ruling raises questions about the model contracts provided by the tax authorities. The tax authorities state that in case of doubt as to whether there is salaried employment, a model contract can be used. For example, if the contractor can be replaced, a model contract can be used that assumes “no obligation to perform work in person”. According to the tax authorities, this is a contract for services so that the contractor will not be considered as an employee.

As the tax authorities set as a condition that a model contract must be executed as agreed upon, it is questionable whether the Deliveroo ruling will make much difference in practice. Apart from the fact that the tax authorities will still be cautious in enforcing the Assessment of Employment Relationships (Deregulation) Act (Wet DBA) until at least 2025.

Conclusion

What is written on paper is thus not sufficient for a qualification of a contract. To be on the safe side on whether you are working with a self-employed person or an employee, it is important to consider all the circumstances of a case. This also concerns the actual implementation of a contract and not only the arrangements made or the intentions of the parties.

Employment lawyer

Are you, as a principal, planning to draw up a contract for services? Or would you like to know how to qualify the contract under which you perform work? We will be happy to give you advice. You can also contact us for other law questions. Please contact: