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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. 

At a meat wholesaler, an employee took hamburgers on several occasions without registering or paying for them. His employer dismissed him with immediate effect. According to the subdistrict court, this went too far in the circumstances.

The employer invoked a zero-tolerance policy, but failed to demonstrate sufficiently that this had been clearly communicated and consistently enforced. For example, the posters in the canteen did state how staff were to order products, but did not specify that breaching those rules could have consequences, nor what those consequences might be.

Furthermore, statements from employees revealed a different practice: products were regularly nibbled on or leftover meat was shared out, whilst the employer was aware that other employees were also taking products without registering them. According to the subdistrict court, there was therefore no question of a strictly and consistently applied zero-tolerance policy.

Personal circumstances were also taken into account. The employee was 64 years old and had apparently been working for the company to the employer’s satisfaction for 25 years. According to the employment tribunal judge, the employer could have made do with a less severe sanction, such as a warning. The summary dismissal was therefore upheld.

The employee accepted the termination of his employment, but was awarded over € 246,000 gross in severance pay. Of this, nearly € 160,000 gross consisted of fair compensation, based in part on the expected loss of income and pension benefits up to his retirement. This was supplemented by arrears of wages, holiday pay and holiday hours, with a 50 per cent statutory increase. Interest and legal costs were also borne by the employer.

This ruling demonstrates once again that a strict policy on paper is not enough. Rules must be clear, regularly brought to employees’ attention and consistently applied in practice.

The holidays are over, diaries are filling up and everyone is back at work. So this is a good time not only to switch the coffee machine back on, but also to dust off your staff regulations. Are your internal rules still up to date, clear and in line with actual practice? Curious to find out what we can do for you? Our employment law team is here to help.

You can read the ruling here.

AI is popping up everywhere these days, and is therefore becoming increasingly common in legal practice too. That need not be a problem in itself. However, anyone who uses AI to draft a court document and then forgets to check whether the facts, legal reasoning and supporting evidence are accurate and complete may face serious consequences during the proceedings.

This is also evident from a recent ruling by the Limburg District Court. In this case, an employee sought payment of a transition payment following the termination of their employment contract. According to the subdistrict court judge, the application had been “clearly fabricated with the aid of AI”. The problem lay not in the use of AI itself, but in the way it had been handled: any sound factual and legal basis was entirely absent.

For instance, it was not clear how the employment contract had been terminated, whereas this is precisely what is relevant to the question of whether there is a right to a transition payment. A mere reference to Article 7:673 of the Dutch Civil Code was, according to the subdistrict court judge, simply not enough. The employee was given the opportunity to supplement his petition, but did not take advantage of it. The claim was ultimately dismissed in its entirety.

AI can produce legally convincing texts, but polished wording does not in itself constitute a sound litigation strategy. A legal document must be grounded in the specific facts, apply the correct legal framework and be supported by evidence. Anyone who uses AI without carefully making that translation runs the risk that a document which appears professional will, in substance, be of little merit.

For solicitors and other legal professionals, the lesson is therefore not that AI should be banned from litigation practice. On the contrary: it can be a valuable tool. But it is one that requires critical scrutiny. AI can assist with drafting, structuring and contributing ideas, but the legal responsibility remains with the human being.

Are you involved in an employment law dispute and would you like an assessment of whether your case is legally sound? Then please contact Dennis Oud, Tessa Sipkema, Elke Hofman-Bijvank or Noa Bilogrevic, rather than relying olely on a chatbot. AI is capable of a great deal, but expert legal advice remains a bespoke service.

You can read the judgement here.

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. 

Enforcement by public authorities is a common topic in environmental law and takes various forms. This blog discusses the basics of enforcement. It will examine the grounds for enforcement, the various forms of enforcement and associated procedures, and the legal remedies available to members of the public and businesses.

The grounds for enforcement

Enforcement often takes place following a report or a so-called enforcement request from third parties, after which an inspection is carried out. Depending on the enforcement policy of the relevant administrative body, the latter may also carry out inspections on its own initiative. Once the administrative body has identified a breach, the enforcement procedure is set in motion.

An offence may, for example, involve the use of a building in contravention of the environmental plan, or structures erected without planning permission. There must be a breach of a law or regulation. This may be a local authority regulation, such as the environmental plan or the General Local By-laws (APV), but may also be legislation and regulations issued by central government, such as the Environment Act or the Building Works in the Living Environment Decree (Bbl).

The offence that has been detected must be brought to an end and, in some cases, (also) punished. However, the administrative body does not proceed directly to enforcement.

Warning or notice of intention

Once the offence has been detected, in most cases the offender is first notified of it. In some cases, the offender first receives a warning from the administrative body. The warning highlights the offence and instructs the offender to cease the offence or ensure it does not occur again. If the offender complies, no enforcement action is taken.

A warning is not a requirement, but a policy decision by an administrative body, in which the urgency and nature of the offence play a role.

It is therefore also possible to send a notice of intent to enforce directly to the offender without issuing a prior warning. This means that the offender is informed of the offence and is given the opportunity to cease the offence before enforcement takes place.

The offender may submit a statement of views in response to a notice of intent. This is the offender’s response to the established infringement, in which they may, for example, explain how the infringement came about, or why there is no infringement at all and enforcement is therefore not warranted. Normally, a two-week period is allowed for submitting a statement of views.

There are also cases in which neither a warning nor a notice of intent is issued. This is the case where there is such urgency in bringing the infringement to an end that there is no time for a notice of intent and a statement of views. This is referred to as urgent administrative enforcement and/or extremely urgent administrative enforcement, but will not be elaborated on further here.

Enforcement measures

If the infringement continues after a warning and the notice of intent have been issued, and the statement of views does not cause the administrative body to change its mind, ‘proper’ enforcement begins.

There are three enforcement instruments for this purpose:

• Order subject to a penalty payment
• Order subject to administrative coercion:
• Administrative fine

These three instruments and the associated procedures are set out in detail below.
Incidentally, the revocation of a licence can also be regarded as a means of enforcement, but this is not discussed further here.

Order subject to a penalty payment

An order subject to a penalty payment is a remedial sanction. The aim is to put an end to the infringement and restore the legal situation. To achieve this, the offender is given a period of time in which to cease the infringement. This is known as the grace period.

If the breach has not been remedied by the end of the grace period, the offender must pay a penalty payment. The amount of the penalty payment varies from case to case and, in principle, depends on the government’s enforcement policy, but may also be influenced by specific circumstances.

An example: the municipality of Rotterdam has established that the firm Vis has erected a new fence on its premises. According to the municipality of Rotterdam’s environmental plan, such fencing may be no more than two metres high. The firm Vis’s fence is three metres high. This therefore constitutes a breach of the environmental plan. The municipality wants the fence to be lowered to the permitted two metres. After sending a notice of intent (and, where applicable, a warning beforehand), the fence has not been lowered and the breach therefore continues. The municipality has issued Vis with an order subject to a penalty payment. The fence must be lowered to two metres within six weeks. If Vis fails to do so on time, a penalty payment of €2,000.00 must be paid.

Administrative order

An administrative order is also a remedial sanction. The aim is to put an end to the infringement and restore the lawful situation. Here too, the offender is first given a period of time in which to put an end to the infringement (the grace period).

The difference from an order subject to a penalty payment is that, if the infringement has not been brought to an end by the expiry of the grace period, no penalty payment is payable. In the case of an order subject to administrative enforcement, any infringement that continues after the expiry of the grace period is brought to an end by the administrative body itself, at the offender’s expense.

An order subject to administrative enforcement is often used in cases of urgency or danger, where the financial pressure of a penalty payment is ineffective, but also where the offender is unable to remedy the breach themselves.

Example: during an inspection of a residential renovation project by a property maintenance company, the inspectors establish that there is a risk of collapse. The offender is given a short deadline to remedy the risk of collapse themselves. If the offender fails to do so in time, the administrative body will have the necessary work carried out, given the danger to the surrounding area. The bill for the work will be sent to the offender.

Administrative fine

An administrative fine is a punitive sanction. Its purpose is not to remedy an offence, but to punish the offender for committing the offence and to deter them from committing it again.

There is no grace period attached to an administrative fine. The only time limit that applies is the payment deadline. In principle, the fine must be paid by the offender within six weeks.

An administrative fine cannot be imposed in every case. The law permits this only in specific cases and situations. These include, for example, the accommodation of migrant workers and letting rooms to students, as well as breaches of the Alcohol Act. For most offences relating to building regulations, there is no authority to impose fines, and remedial sanctions must be used instead.

There are also cases in which an administrative fine is imposed alongside a remedial sanction. In such cases, the remedial sanction is intended to bring the offence to an end, whilst the administrative fine serves as an additional penalty or punishment.

An example: a property is let by the owner to four students without the necessary licence. The letting must be stopped. To this end, an order subject to a penalty payment is imposed. However, the administrative body also wishes to penalise the owner for the offence. To do so, an administrative fine is imposed.

How is enforcement brought to an end?

A number of steps can be taken to bring enforcement to an end.

For remedial sanctions, there are three:

• Comply with the order within the grace period. The breach will then be rectified in time and enforcement will no longer be necessary. No penalty payment will need to be made and no administrative coercion will be applied.
• Regularisation: in some cases, the infringement can still be authorised. If that authorisation is granted in time (i.e. before the expiry of the grace period), the infringement ceases to exist and enforcement can be discontinued. No penalty payment needs to be made and no administrative coercion needs to be applied.
• Legal remedies: legal remedies are available against the remedial sanctions. The first step is to lodge an objection. If that objection is declared unfounded, an appeal may still be lodged with the administrative court and – in most cases – a further appeal with the Administrative Law Division of the Council of State. If the offender is successful in their objection or (further) appeal, the enforcement proceedings are dropped.   

The situation is slightly different for administrative fines. As an administrative fine is not a remedial sanction, there is no need for the offence to be regularised or brought to an end. In this case, enforcement is not an ongoing procedure, but is based solely on a single act: the imposition of the fine. That fine must be paid. To avoid having to pay the administrative fine, the same legal remedies are available as for remedial sanctions (objection and (further) appeal).

Please note: in the case of an order subject to a penalty payment, it is therefore not sufficient simply to pay the penalty. After all, the offence has not yet been brought to an end. As long as this is not the case, enforcement will continue.

Conclusion

These are the basics of enforcement by public authorities. Are you facing enforcement action, or do you fear that this may happen in the near future? If so, please contact Gerard van der Wende or myself.

An employee who regularly works on Sundays usually receives a Sunday allowance for this if a collective agreement applies. But what happens to that allowance if the employee falls ill? The District Court of The Hague recently considered precisely this question.

In this case, the collective agreement for staff of large retail chains and the food industry (VGL-CAO) applied to the employment contract. That collective agreement stipulates that, during illness, an employee receives 100 per cent of the wages to which they would have been entitled whilst performing their normal duties for the first 26 weeks, 90 per cent thereafter, and 80 per cent in the second year of illness. At the same time, the collective agreement stipulates that allowances for special working hours, such as the Sunday allowance, do not fall within the definition of ‘wages’.

Prior to reporting sick, the employee regularly worked on Sundays and therefore regularly received a Sunday allowance. In his view, this allowance should therefore have continued to be paid during his sick leave. His reasoning was that he would also have received the allowance had he been performing his duties as normal. Sounds logical, doesn’t it?

The subdistrict court did not agree. As the VGL collective agreement explicitly stipulates that allowances for special working hours do not fall within the definition of ‘wages’, the Sunday allowance did not have to be continued during sick leave under the terms of the collective agreement. 

The fact that, in practice, the employee worked on Sundays on a regular basis and therefore always received the Sunday allowance in the normal course of his duties did not, in the court’s view, alter this. The phrase ‘to which he would have been entitled in the normal course of his duties’ does not imply that the ‘fixed’ allowances should be paid in contravention of the concept of wages, the court held.

However, this did not bring the discussion to a close. The statutory provision for continued payment of wages during sickness sets a minimum threshold. Under Article 7:629 of the Dutch Civil Code, an employee is, in principle, entitled to 70 per cent of the (maximum daily) wage. When determining that statutory wage, structural allowances may well play a role. No deviation from this statutory protection may be made to the detriment of the employee.

In this case, however, that proved not to be a problem. Under the collective agreement, the employer paid 100 per cent of the wage specified in the collective agreement during the period of sickness, followed by 90 per cent and then 80 per cent. The employer was able to demonstrate that the employee thus consistently received more than the statutory minimum of 70 per cent, even when the Sunday allowance was included in that statutory calculation. The subdistrict court therefore concluded that the collective agreement provision did not work to the employee’s disadvantage. The employee was therefore not entitled to additional payment of the Sunday allowance.

This ruling demonstrates that it is not only the wage components actually received that are relevant, but also how the wage is defined in the applicable collective agreement. Under the law, the employee was therefore entitled to the Sunday allowance whilst on sick leave, but a collective agreement may exclude certain allowances, provided that the employee receives at least what they are entitled to by law whilst on sick leave.

Do you have any questions about continued payment of wages whilst your employees are on sick leave? Please contact Dennis Oud, Tessa Sipkema, Elke Hofman-Bijvank or Noa Bilogrevic.

You can read the ruling here.