First an employee, then self-employed for almost 15 years, and still no employment contract

An employee continued to work for the same organisation as a self-employed person after his employment contract ended, and did so for almost fifteen years. 

Particularly in the current debate on bogus self-employment, one might expect such an arrangement to be quickly reclassified as an employment contract. However, in a recent ruling, the Court of Appeal in The Hague reached a different conclusion.

The IT specialist initially worked as a salaried employee for the Union of Water Authorities. After his employment ended, he began carrying out work for the Union through his own company. When that collaboration ended in 2025, he argued that, even after he left the organisation, an employment contract had in fact continued to exist.

The Court of Appeal acknowledges that there are clear circumstances supporting this view. For instance, he had previously been an employee of the same organisation, the collaboration lasted an exceptionally long time, and he always carried out the work personally. Nevertheless, according to the Court of Appeal, the circumstances pointing to self-employment carry greater weight.

In this regard, the court pays particular attention to the way in which the parties have actually shaped their relationship over the years. The contracts for services always had a specific term, and new contracts were renegotiated. The contractor made counter-proposals, sought advice and, in various years, drafted the contracts himself. The terms and conditions also changed regularly. For example, the hourly rate eventually rose to €79.00 excluding VAT, and negotiations took place on matters including the payment terms and intellectual property rights.

The Court of Appeal also identified characteristics of self-employment in the day-to-day performance of the work. He was free to decide when to work his hours and claimed varying numbers of hours each month. There were even months in which no hours were claimed. He charged VAT, no payroll taxes or social security contributions were deducted, and he stated that he worked for other clients as well as De Unie. In addition, he held public liability insurance and, according to the Court of Appeal, bore his own commercial risk.

Equally relevant is the relationship of authority. Although evaluation meetings were scheduled on paper, they did not take place in practice. Moreover, there was no one within De Unie who could assess the substance of his work. He decided for himself how to carry out his duties. For De Unie, it was the result that counted above all else. Nor was he required to adhere to all internal rules and procedures, and he did not take part in the regular fortnightly staff meetings. Furthermore, the actual nature of his work had also changed significantly compared with his duties as an employee at the time.

Finally, it is noteworthy that De Unie at one point asked him whether he wished to enter into an employment contract for 16 hours per week for his work. According to the Court of Appeal, he himself rejected that offer.

All things considered, the Court of Appeal ruled that the nature of the employment relationship had indeed changed following the termination of the original employment contract and that it was genuinely a ‘self-employed contractor agreement’. The fact that someone was previously an employee is therefore a relevant circumstance, but not decisive. Even in the case of a very long-term collaboration with the same organisation, a genuine contract for services may exist if the negotiations, contractual terms and actual performance demonstrate sufficient entrepreneurial initiative and independence.

Incidentally, De Unie did not emerge from the proceedings entirely unscathed. As the contractual relationship had lasted for more than ten years and the parties had agreed on a further extension, the Court of Appeal ruled that De Unie should have given at least six months’ notice that the contract would be terminated. As this had not been done, the self-employed person was awarded € 33,072.00 in damages.

Should you have any questions regarding this matter, please contact Dennis Oud, Tessa Sipkema, Elke Hofman-Bijvank or myself. 

You can read the judgment here.