When can we say that there is genuine independence in the care sector?

The use of self-employed workers in the healthcare sector has been the subject of considerable attention for some time now. This regularly raises the question of when a healthcare professional can actually be regarded as self-employed and when the working arrangement in fact qualifies as an employment contract. A recent ruling by the Limburg District Court shows that genuine self-employment can exist within the healthcare sector, even when the self-employed person carries out work that is also performed by salaried employees.

In this case, a healthcare professional carried out work for the Pergamijn care institution under a contract for services. After that contract had been terminated, the healthcare professional argued that he had in fact been working as an employee. He therefore claimed, amongst other things, wages and the employment law protections associated with an employment contract. The subdistrict court judge did not agree with this argument.

In reaching his decision, the subdistrict court judge first considered the rights and obligations that the parties had actually agreed upon. He then assessed whether, having regard to all the circumstances of the case, those agreements had the characteristics of an employment contract. Factors of importance in this regard include how the work and working hours are determined, the extent to which the worker is integrated into the organisation, whether he must carry out the work personally, how remuneration is arranged, whether he bears any commercial risk, and whether he actually behaves as an entrepreneur. It is therefore a question of the overall picture and not solely the name the parties have given to their agreement.

What is striking about this ruling is that the healthcare professional carried out work that was substantively comparable to that performed by Pergamijn’s employees. According to the subdistrict court, however, this was insufficient to establish an employment relationship. After all, the fact that the same work is also carried out by salaried employees may be linked to the nature of the work itself. Furthermore, the healthcare professional did not take part in general work meetings or staff meetings, and no performance reviews were conducted with him.

The healthcare professional also enjoyed a considerable degree of independence in other respects. He was not assigned to a fixed rota. The planning department would bring available shifts to his attention, after which he could decide for himself which shifts to accept or decline. Pergamijn could not oblige him to work a particular shift. Furthermore, he carried out his work independently and at his own discretion, without separate supervision or management from Pergamijn. The fact that he was required to adhere to the care plan, the applicable professional standards and the relevant care legislation did not, in the view of the subdistrict court, alter this. After all, such frameworks stem in part from the nature of care provision.

Another factor was that the care professional was able to arrange for a replacement. He could cancel a shift no later than 24 hours before it was due to start and, if unable to attend, had to arrange a suitable replacement himself. He also bore a financial risk: he was paid exclusively for hours actually worked and received no remuneration in the event of illness or holiday. He issued his own invoices, held his own public liability insurance and was personally responsible for matters including taxes, insurance and pension contributions. Moreover, during the course of the collaboration, he also worked for other clients.

After weighing up all the circumstances, the subdistrict court judge concluded that there was no employment contract. Both the agreements and their actual implementation were consistent with a working relationship between a client and a self-employed contractor. The healthcare professional’s claims were therefore dismissed.

For organisations working with self-employed contractors, it therefore remains important that their practices align with the chosen form of contract. A contract for services alone is not sufficient. The self-employed person must also have genuine scope to refuse assignments, carry out their work independently and bear the entrepreneurial risk.

Do you have any questions about the use of self-employed contractors or about ensuring your contracts align with actual practice? Please contact Dennis Oud, Tessa Sipkema, Elke Hofman-Bijvank or Noa Bilogrevic.

You can read the judgment here.