Freelancers and the Law: Navigating the Changing Landscape

Welcome to this edition of CLINT | Littler Insights!, where we dive into the evolving legal framework surrounding self-employment. In our latest podcast episode of CLINT | Littler Explains! (in Dutch), we explored the complex question: Is a freelancer truly independent? Joined by experts, we break down the recent developments and implications of the Deliveroo and Uber cases.

Building on this, read a detailed article focusing on the challenges faced by the catering industry as the Dutch Tax Administration resumes enforcement in 2025. It highlights the risks and responsibilities for businesses hiring freelancers, offering practical insights based on the Deliveroo viewpoints.

Is a Freelance Truly Independent?

In this episode of Clint | Littler Explains! Jasper Hoffstedde and his guests take a deep dive into a topic that continues to dominate the labor market: freelancers. Joining the discussion are Wouter Engelsman, Tanya van Nieuwstadt, and Eric van Dam who explore the increasingly complex position of independent contractors.

The question of whether a freelancer is truly independent or, in fact, an employee is more relevant than ever. Recent court cases, such as those involving Uber and Deliveroo, have reignited the debate. With the enforcement of the Employment Relationships Deregulation Act (Wet DBA) set to begin on January 1, 2025, organizations are feeling the pressure. Some have even opted for an outright ban on freelancers. But is that really necessary?

With enforcement approaching, it is crucial for both clients and freelancers to be aware of the risks and ensure their contracts are carefully crafted. Striking the right balance between practical collaboration and legal certainty remains a key challenge.

In this podcast, the guests provide context by explaining the transition from the VAR system to the Wet DBA. They also discuss the nine key criteria introduced by the Supreme Court for a holistic assessment of employment relationships.

Want to learn more about these nine criteria and how they apply in practice? Listen to the full episode of Clint | Littler Explains! and stay informed on the latest developments.

Self-employed individuals without employees in the catering industry

There has recently been a lot of talk about self-employed individuals without employees ("zzp'ers") and bogus self-employment. What is the situation in the catering industry?

Enforcement by the Dutch Tax Administration

On January 1, 2025, the Dutch Tax Administration will start enforcement activity to determine whether a worker qualifies as self-employed or as an employee. This is of relevance to the Tax Administration because employers are liable for wage tax and employee contributions for their employees. This does not apply to clients of self-employed professionals. Therefore, if a business in the catering industry employs self-employed workers who are actually employees, the Tax Administration will be able to impose subsequent assessments for wage tax and employee contributions. How to reduce this risk?

Self-employed or employee - that's the question

A worker is an employee if he/she (1) works in exchange for payment (2) works under direction and supervision, and (3) does that work personally. The difference between a self-employed professional and an employee is that the former works independently, meaning that he or she does not work under direction and supervision and may also hire others to do the work.

Deliveroo judgment

The Dutch Supreme Court's judgment in Deliveroo clarified the difference between employees and self-employed professionals, ruling that the issue had to be tested against the following nine viewpoints:

1. the nature and duration of the work;
2. how the work and working hours are determined;
3. the degree to which the work and the person doing it are embedded in the organization and operations of the party for whom that work is being carried out;
4. whether or not there is an obligation to perform the work personally;
5. how the contractual relationship between the parties was established;
6. how remuneration is determined and paid;
7. the amount of that remuneration;
8. whether the person doing the work runs a commercial risk in that regard;
9. whether the person doing the work acts or is able to act as an entrepreneur in the economic arena (for example, in gaining a reputation, in acquiring clients, in terms of tax treatment and having regard to the number of clients for whom he/she works or has worked and the duration for which he/she usually commits him/herself to a particular client).

Deliveroo viewpoints in the catering industry

In the catering industry, it will sometimes be difficult to prove that a worker qualifies as self-employed. The fact is that the work of a self-employed assistant cook or bartender is a core feature of any business in the catering industry. The worker receives substantive instructions and working hours are determined by the establishment. Also, an assistant cook or bartender often runs no commercial risk. In short, such self-employed professionals resemble employees.

The problem is that not only the Tax Administration but also self-employed professionals may submit claims. For instance, if a self-employed individual is sick or is dismissed, he or she will be able to claim employee status based on the Deliveroo viewpoints. With all the associated consequences, and not only in terms of dismissal itself. Other claims might also be possible, for instance holiday allowance, holidays, past pension contributions, overtime pay, etc. Therefore, this problem affects not only the Tax Administration but also the self-employed themselves.

Temper

The Temper platform proves (for now) that self-employment on the basis of a contract for services is still possible in the catering and other industries. Based on the Deliveroo viewpoints, the Amsterdam District Court held that the generally short-term contracts reviewed by it, which workers were not obliged to accept or were suitable for being performed by other parties, did not meet the criteria of employment contracts.

Conclusion

On January 1, 2025, the Dutch Tax Administration will recommence enforcement activity, making it less simple to contract self-employed professionals. This will also apply to the catering industry. Therefore, think carefully about whether a worker is going to work independently or in fact under direction and supervision. Use the viewpoints determined in the Deliveroo judgment in this regard. Next, decide whether to offer an employment contract or a contract for services.

And to complicate things even further: the Assessment of Employment Relationships and Legal Presumption (Clarification) (Verduidelijking Beoordeling Arbeidsrelaties en Rechtsvermoeden) Bill is now before the Council of State, which may also make changes to determining whether a worker qualifies as self-employed or as an employee.

Please do not hesitate to contact us if you have any other questions about this issue.

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