Cut out for an employment contract?✂️

Recently, the District Court of North Holland ruled, which again clearly shows that parties should look at the actual situation and not so much at what is (not) on paper. This case was about a hairdresser who was seen as a freelancer by her employer, because they did not (yet) have a written employment contract, but according to the subdistrict court she was still seen as an employee.

What was going on in this case? In this case, the parties discussed drafting a written employment contract. However, they had not agreed on the terms. A few months later, the (mother of the) hairdresser asks the salon owner for the employment contract and pay slips so that she has clarity on vacation days and vacation pay. The salon owner indicates that as long as the hairdresser does not agree to the employment contract, she is considered a self-employed worker and therefore the salon does not have to pay pay payroll taxes. Subsequently, the hairdresser called in sick, which the salon owner considered a termination of the employment contract. The hairdresser took the position that no notice should be given because she was sick and there was a prohibition on giving notice.

Why did the district judge rule that the hairdresser was an employee? The salon owner specified the work to be done by the hairdresser, with the hairdresser also needing constant supervision because she could not do the work independently. This indicates a relationship of authority. In addition, the hairdresser did not send invoices, did not charge her own hourly rate and was not registered in the trade register of the Chamber of Commerce. She reported her hours worked, after which payment followed. Thus, the hairdresser received wages and performed labor under authority for a certain amount of time. In short, all the requirements for an employment contract under Section 7:610 of the Civil Code were met. 

What was the consequence? The salon owner was not allowed to terminate the employment contract in connection with the ban on notice during illness and must therefore reintegrate the hairdresser and then keep her at work. In addition, the hairdresser's collective bargaining agreement, which has been declared generally binding, came into play and the hairdresser was entitled to 100% salary continuation including vacation allowance in accordance with the collective bargaining agreement for at least the first year of illness.

Do you have questions about whether the zzp'ers you have engaged are not in fact employees in disguise or would you like to set out the agreements with these zzp'ers more clearly on paper? If so, please contact Dennis Oud, Tessa Sipkema, Elke Hofman-Bijvank or Tim van Riel. 

You can find the link of the ruling here.