Judge clears the till: employee or self-employed?

Employers and clients may be thinking, ‘Here we go again...’, but the question of when someone is an employee and when a self-employed person continues to occupy minds. On 11 March this year, the Rotterdam District Court issued the ruling following the Uber judgment in this area - making it well worth dwelling on. 

At issue in this ruling was a manager of a pancake restaurant, who was working on the basis of an assignment contract. After this manager was accused of making a grab from the till, the cooperation between the two was terminated with immediate effect. The question presented to the court: does the cooperation between the parties qualify as an assignment contract or an employment contract? 

The judge applied the line from the Uber judgment one-to-one: all points of view from Deliveroo were assessed in relation to each other, without one factor being decisive. This therefore means that the actual performance of the cooperation was looked at and not just the paper agreements. The conclusion? This business manager was working under a contract of engagement. The factors involved included:

• that the business manager himself had insisted on a commission contract and had himself provided a contract for that purpose;
• that the business manager invoiced weekly at a fixed hourly rate, including VAT;
• that no payroll tax and contributions were withheld, no pay slips were provided and no leave or performance regulation was in place;
• that the business manager was registered as an entrepreneur, had previously worked as a self-employed person and had done so after this assignment;
• that the business manager had taken out liability insurance.

Although this manager received instructions and had a certain degree of embeddedness in the organisation, this did not outweigh the fact that he himself had chosen to work as a contractor and presented himself as such to the outside world. Consequently, the claims brought by the manager for compensation for wrongful termination, payment of the transitional compensation and fair compensation were dismissed.  

What does this mean? This ruling highlights that the contractual and factual interpretation of cooperation is crucial. Employers and Principals would do well not only to make clear agreements, but also to make them fit the intended form of cooperation in practice. Because when and court has to judge, it looks at the overall picture. 

Do you have doubts about using self-employed workers in your company? Or would you like to know more about the legal risks? If so, please contact Dennis Oud, Elke Hofman or Tim van Riel.

You can read the ruling here.