To be zzp or not to be zzp.
The importance of "personal entrepreneurship" should not be overstated.

Tessa

Uber chauffeurThe Amsterdam Court of Appeal has referred questions to the Supreme Court in the case between Uber and FNV about the working relationship of Uber drivers. These questions are part of the wider political and legal debate on the position of self-employed workers and employees that cannot have escaped entrepreneurs. In the Deliveroo judgment, the Supreme Court formulated a dozen points of view on the basis of which an employment relationship should be assessed. 

In an extensive opinion, Advocate General De Bock (AG) further fleshed out the significance of personal entrepreneurship (the ninth point of view) in assessing whether (in this case) the taxi driver is an employee or self-employed. Especially important for the self-employed who think they are there with three different clients and get out from under that employment contract. If so, you will be in for a cold ride if the Supreme Court adopts the AG's opinion. 

Below is a brief overview with its views:

  • Personal entrepreneurship should be given only limited significance when assessing whether there is an employment contract. What is personal entrepreneurship?  This could include, for example, having multiple clients, making business investments and actively soliciting clients.
  • According to the AG, personal entrepreneurship should only matter if the other points of view are inconclusive. It cannot ‘tip the balance’. According to the AG, it would be strange if more significance is attached to conduct occurring outside the employment relationship than to conduct occurring within the employment relationship.
  • For the remaining eight points of view, ‘internal entrepreneurship’ does remain significant. So what is internal entrepreneurship? This could include the commercial risk that the self-employed person runs or not, whether there is an economic (dis)dependence and whether the self-employed person has a sustainable organisation. 

Significantly, the Deliveroo judgment did not rank the ten points of view among them and the AG does so now.

Relationship to the VBAR

The zzp-issue is also in the spotlight in political The Hague. Currently, the Act Verduidelijking Beoordeling Arbeidsrelaties en Rechtsvermonden (VBAR) is before the Council of State for advice. This law should make it easier to determine whether someone is working as a self-employed person or an employee. Granting a limited role to personal entrepreneurship is in line with the VBAR Act, according to the AG. 

Conclusion

Following this conclusion of the AG, the Supreme Court will formulate final answers to the preliminary questions. To what extent these will prejudice the points of view, as set out in Deliveroo, is currently unknown. What remains undisputed is that there is much to be done regarding the position of self-employed workers. As an employer, check on a case-by-case basis to what extent it is appropriate for you to have a self-employed person. 

Do you have questions about hiring freelancers in your business? If so, please contact Dennis Oud, Tessa Sipkema, or Elke Hofman.

Read the AG's conclusion here

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Erwin den Hartog

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Gerard van der Wende

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Elke Hofman-Bijvank

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Iris Keemink

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