Review of contracts with self-employed workers
The Dutch government has announced legislation aimed at limiting self-employed workers (zzp’er). This new legislation will provide more clarity on whether an employment contract does or does not exist. Since the demise of the so-called VAR declaration, uncertainty has arisen about this.
The fact is that, even if it is the intention of the parties to classify the contractual relationship as an assignment, in practice the work and position of a large proportion of self-employed workers is not substantially different from the work and position of regular employees, working under the authority of an employer.
In the Netherlands the self-employed worker have limited or no protection against risks of dismissal or disability. They also lack social security and pension benefits. Yet contracting a self-employed worker is usually considered (financially) beneficial by companies but often also by the self-employed workers.
The Dutch tax authorities currently apply a so-called enforcement moratorium on regulations designed to prevent false self-employment. However, this does not apply to employment structures deliberately set up to avoid these legal deductions.
The Supreme Court’s now much-discussed Deliveroo judgment of March 24, 2023 confirms this. According to this judgment, the existence of “employer authority”, which is fundamental to an employment contract, requires a holistic assessment of all the circumstances relevant. Important circumstances in that context include, for example, whether the work and the person doing the work are embedded in the organization, the existence or non-existence of an obligation on the part of the worker to perform the work personally. More over, the way the remuneration is determined, but also whether the employee behaves as an entrepreneur in and outside the contractual relationship, is to be considered.
In this regard, the manner in which things are arranged contractually is not necessarily decisive for the qualification of the employment relationship. What matters is that the clauses drawn up with a certain intention are actually in line with the work and the manner in which it is performed. This became abundantly clear from the Deliveroo judgment, which held that although the self-employed workers employed there were allowed to offer replacements. In short, a thorough analysis of the contractual terms is required to rule out the unwanted existence of an employment contract. Since in practice this was virtually impossible, it was ruled that employment contracts were nevertheless in place.
This is all the more relevant because as a result of the proposed new legislation, enforcement by the Dutch Tax Authorities of payroll tax and social security contributions will resume on January 1, 2025. Companies and the self-employed workers would therefore do well to reassess their position in order to avoid tax- and labor-related claims and costs.
We therefore advise our clients to have their current contractual relationships with self-employed workers (re)assessed soonest, in order to avoid surprises. Companies that intend to work with self-employed workers in the future are recommended to seek advice on this beforehand, to be able to work with watertight agreements from the start.
Need an assessment or quick scan of your existing contracts at short notice? We do this quickly and efficiently and at attractive rates.
Would you like to have more information about the letter of intent? Then please contact us. We’re happy to assist you.
ECLI:NL:HR:2023:443 – Supreme Court, 24-03-2023 / 21/02090