https://ploum.nl/uploads/Artikelen_en_Track_Records_en_expertise/Algemeen/pexels-pixabay-60504.jpg

Employee or self-employed? Two security guards, two different court rulings

21 Jan '25

Author(s): Michelle Westhoeve

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.

First things first: the Deliveroo criteria

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.

First ruling: security guard is employee

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 security guard worked in a team with employees doing the same job as him;
  • The security guard received extensive instructions;
  • The security guard had to attend training sessions and was onboarded by a coordinator/manager;
  • The security guard was planned to work in fixed shifts;
  • The security guard had to wear a uniform;
  • The security guard performed the work full-time for one year;
  • The security work was fully embedded in the organization of his client/employer, a security agency.

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’).

Second ruling: security guard is self-employed

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:

  • The security guard only worked for about 5 months, during which time he was able to schedule his own working time and was also allowed to refuse scheduled shifts;
  • The security guard had to follow basic rules, but otherwise received no instructions, assessments or training, nor was he required to wear a uniform;
  • The security guard could be replaced by another person, as long as that person met the qualifications;
  • The security guard received an hourly wage substantially higher than the wages received by employees for similar work;
  • The security guard was at entrepreneurial risk because his income depended on the number of hours he worked;
  • The security guard already had a sole proprietorship company and had previously been self-employed in another industry.

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.

Everything depends on how parties work together in practice

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!

Contact

Attorney at law

Michelle Westhoeve

Expertises:  Employment law, Privacy law, Employee participation, Transport and Logistics, Distressed companies,

Share this article

Stay up to date

Click on the plus and sign up for updates on this topic.

Expertise(s)