Self-employed (Freelancers) in the Netherlands Under Exposure: The Dutch Supreme Court Confirms that not the Contract but the Situation in Practice is Leading.

On November 6th 2020, the Dutch Supreme Court ruled that when assessing whether there is an employment agreement or not, the situation in practice is leading and not the contract nor the original intention of the parties when concluding the agreement.

If the rights and obligations in practice (not on paper) show the characteristics of an employment agreement (work (personal) wages, relationship of authority) there is an employment agreement.

This decision of the Supreme Court could jeopardize the self-employed practice of meal deliverers (such as Uber and Deliveroo) and the parcel delivery companies in the Netherlands: the staff could be regarded as employees with all the Dutch law employment protection rules applicable. Also independent specialists working in a hospital (they themselves want to be regarded as self-employed, but the hospital prefers to employ them) could be exposed to the consequences of the decision of the Supreme Court.

With regards to self-employed grooms, it is a good idea to verify whether they are really self-employed or in fact employees.

For both employers and employees, it is better to know upfront whether there is a (substantial) chance that an agreement in practice is an employment agreement or not. It has quite a few (financial) and legal consequences. Our colleague Amanda Brouwers could assist you with finding out the situation in practice and could provide you with advice on the matter.

Source: ECLI: NL: HR: 2020: 1746

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