21 Jan '25
The distinction between being an employee or self-employed is a key issue in the Netherlands. Since January 1, 2025, the Tax Authority has been enforcing the law, but civil litigation is also ongoing. Court rulings on such cases provide guidance to organizations uncertain about worker status. Here, we examine two cases involving security guards: one deemed an employee, the other a genuine self-employed worker.
Back to basics first. It is likely well-known to many by now: whether there is an employment contract is assessed on the basis of the Deliveroo criteria as introduced by the Dutch Supreme Court in 2023 (ruling in Dutch here). These criteria include questions like whether the employee and the work are 'embedded' in the organization, whether the employee must follow instructions, and whether the employee presents themselves to the outside world as an entrepreneur. No single factor outweighs the others; the entire working relationship must be evaluated.
In other words, a single Christmas gift does not establish an employment agreement, nor do three other clients guarantee self-employment. The nature of the collaboration in practice determines the outcome, as shown by the differing rulings in these cases.
In a North Holland court ruling from December 2024, a security guard is considered an employee. As a result of a report, the security guard claims to be an employee, and he starts proceedings. The judge runs down all the Deliveroo criteria.
Among the important circumstances are the following:
The conclusion is that there is an employment contract and the security guard is entitled to back pay. Because the contract entered into was for a fixed term and has since expired, the security guard will also receive the statutory severance (‘transitievergoeding’).
The other ruling is from the East Brabant Court from August 2024. After the cooperation with a self-employed security guard was immediately terminated by his client, the security guard took the position that he was actually an employee, and was therefore summarily dismissed. Again, the court assessed the case using the Deliveroo criteria.
Among the circumstances relevant in this case are the following:
Based on these circumstances, the court held that the parties behaved more like contractor and client than like an employer and an employee. The main difference lies in the freedom this security guard had compared to the first security guard: he received no instructions and could decide for himself whether he wanted to work – and if so, when he worked. Since there was no employment contract, there was also no instant dismissal, and the related requests were therefore rejected.
In short: one security guard is not the other. Whether a worker is an employee or an independent contractor depends on how the parties work together in practice. These rulings show that there is certainly still room to work with self-employed individuals, provided they are genuinely working and treated as self-employed entrepreneurs.
Dealing with employee vs. self-employment questions or need advice? Let’s discuss. Our lawyers from the Employment Law team are happy to help you out!
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