The assess­ment of the (employ­ment) rela­tion­ship is rel­ev­ant to every inde­pend­ent con­tract­or with whom you enter into a con­tract. Is it a real inde­pend­ent con­tract­or, or is there a risk that the con­tracts qual­i­fies as an employ­ment con­tract? Due to the Dutch tax authority’s enforce­ment morator­i­um, this top­ic has received less or no atten­tion for an exten­ded peri­od.

How­ever, jur­is­pru­dence, includ­ing the Deliv­eroo cases, has shown that the status of an inde­pend­ent con­tract­or can change. Now, with the enforce­ment morator­i­um end­ing on 1 Janu­ary 2025, and the bill “Cla­ri­fic­a­tion of employ­ment rela­tion­ship assess­ment and leg­al pre­sump­tion” which is likely to take effect 1 July 2025, the issue has ris­en to a high pri­or­ity on many organ­iz­a­tions’ agen­das. This is appro­pri­ate, as from a labor law per­spect­ive, we do not recog­nize an enforce­ment morator­i­um. Even now, you may be unknow­ingly tak­ing on sig­ni­fic­ant risks.

Employ­ers would be wise to assess now wheth­er the parties they con­tract with are real inde­pend­ent con­tract­ors and/or how they can mit­ig­ate their risks now and in the future. The latest updates regard­ing the qual­i­fic­a­tion can be found in the blogs below.

Should there be a case of a real inde­pend­ent con­tract­or, such a con­tract­or does not inher­ently accu­mu­late a basic pen­sion auto­mat­ic­ally. This must be arranged by the inde­pend­ent con­tract­or them­selves. This aspect is also factored into their hourly rate. How­ever, if there is a pseudo inde­pend­ent con­tract­or, the situ­ation may dif­fer. These pseudo inde­pend­ent con­tract­ors could, under cer­tain cir­cum­stances, fall under man­dat­ory schemes. This may pose sig­ni­fic­ant risks of sub­stan­tial pen­sion claims, both from the employ­ee and industry pen­sion funds.

Organ­iz­a­tions are advised to pro­act­ively map out these risks. In this domain, we col­lab­or­ate with the pen­sion spe­cial­ists from HVG Law and EY. Fol­low the devel­op­ments on this top­ic in the blogs below.

In an asset/liability trans­ac­tion, the ques­tion fre­quently arises wheth­er (part of) the per­son­nel (wheth­er auto­mat­ic­ally due to a trans­fer of under­tak­ing) trans­fers to the pur­chas­ing party. Per­son­nel does not neces­sar­ily mean only employ­ees; inde­pend­ent con­tract­ors must also be accoun­ted for. It is cru­cial to estab­lish clear agree­ments between the buy­er and seller regard­ing who will trans­fer and who will bear the respons­ib­il­ity and risk (even if, for example, it later emerges that there was not an inde­pend­ent con­tract­or but an employ­ment rela­tion­ship, with all its ensu­ing claims).

What should you con­sider when acquir­ing a com­pany with a large pop­u­la­tion of inde­pend­ent con­tract­ors? For the latest devel­op­ments, read our blogs.

A sig­ni­fic­ant por­tion of the ser­vices we cur­rently util­ize is medi­ated through so-called inter­me­di­ar­ies and/or plat­forms. Com­pan­ies have become accus­tomed to mit­ig­at­ing their (employ­ment law) risks by enga­ging with such third parties, often through Ser­vice Level Agree­ments. How­ever, plat­form work has recently been much in the news: con­sider, for instance, Deliv­eroo, Helpling, and Uber, but it also per­tains to oth­er mar­ket play­ers oper­at­ing as brokers or quasi tem­por­ary employ­ment agen­cies for inde­pend­ents.

Employ­ers would be wise to assess such con­trac­tu­al rela­tion­ships and exam­ine if there are hid­den risks of (indir­ect) mater­i­al employ­er status. For the latest devel­op­ments, read our blogs.

Sus­tain­ab­il­ity and fair trans­par­ent labor are quint­es­sen­tial ESG (Envir­on­ment­al, Social, and Gov­ernance) themes that are find­ing their place in Dutch employ­ment law from Europe. With increas­ing atten­tion on cer­ti­fic­a­tions and report­ing oblig­a­tions, the use of non-sus­tain­able labor and/or related ESG risks will need to be iden­ti­fied. Is there suf­fi­cient atten­tion with­in your organ­iz­a­tion for sus­tain­able labor and the right to trans­par­ent and fair work­ing con­di­tions? Does your organ­iz­a­tion adequately address the right to equal pay? Under the prin­ciple of “the pol­luter pays,” the costs asso­ci­ated with this theme will ulti­mately be borne by employ­ers. Con­sider, for example, increased unem­ploy­ment insur­ance premi­ums.

With the grow­ing num­ber of inde­pend­ent con­tract­ors, it is increas­ingly import­ant to have prop­er work­ing con­di­tions and intern­al com­plaint mech­an­isms in place for them. Although inde­pend­ent con­tract­ors are gen­er­ally respons­ible for their own safety at work, they are also sub­ject to (a num­ber of) occu­pa­tion­al safety and health reg­u­la­tions. There is spe­cif­ic occu­pa­tion­al safety and health legis­la­tion for inde­pend­ent con­tract­ors per­form­ing haz­ard­ous work (e.g., in con­struc­tion). In prin­ciple, the same occu­pa­tion­al safety and health rules apply to inde­pend­ent con­tract­ors as to employ­ees if they work togeth­er on the same work­s­ite. Besides the right to good work­ing con­di­tions, since the enact­ment of the whis­tleblower pro­tec­tion Act, inde­pend­ent con­tract­ors (not just employ­ees) can also make a pro­tec­ted dis­clos­ure if there are mal­prac­tices at the work­place. To pre­vent inde­pend­ent con­tract­ors from imme­di­ately report­ing extern­ally, it may be advis­able to make the intern­al whis­tleblower pro­ced­ure access­ible to them as well.

Want to know more? Below, you will find an over­view of our blogs with the most import­ant legis­la­tion and reg­u­la­tions, includ­ing our tips and points of atten­tion.

The law on the alloc­a­tion of labour by inter­me­di­ar­ies (Waadi) is an imple­ment­a­tion of the European agency work Dir­ect­ive. It has now been cla­ri­fied that the agency work Dir­ect­ive applies to all work­ers engaged in an “employ­ment rela­tion­ship.” Hence, the Dir­ect­ive has a broad­er scope than just work­ers engaged under an employ­ment con­tract.

Based on this broad­er inter­pret­a­tion, it could also apply to inde­pend­ent con­tract­ors. This has also been con­firmed in Dutch jur­is­pru­dence. Not all cli­ents are aware of this, while it can have sig­ni­fic­ant implic­a­tions. Read our blogs on this sub­ject below.

Are you plan­ning to engage inde­pend­ent con­tract­ors from abroad for a tem­por­ary assign­ment in the Neth­er­lands? Be aware of the reg­u­la­tions con­cern­ing this, such as the noti­fic­a­tion require­ment at the report­ing desk for pos­ted work­ers. In our blogs, we are pleased to provide you with more inform­a­tion on this top­ic.

It is often thought that dis­cus­sions about col­lect­ive labour agree­ments (CLAs) only arise in the con­text of employ­ees or pseudo-self-employed indi­vidu­als. How­ever, vigil­ance is also required when deploy­ing real inde­pend­ent con­tract­ors. There are increas­ingly more pro­vi­sions for inde­pend­ent con­tract­ors in CLAs, there has been an ongo­ing debate regard­ing a sep­ar­ate CLA for inde­pend­ent con­tract­ors for years, and, for instance, the exper­i­ence years of inde­pend­ent con­tract­ors may need to be con­sidered when they later enter into employ­ment as an employ­ee, even if the inde­pend­ent con­tract­ors has worked for com­pletely dif­fer­ent cli­ents. In the blogs below, we keep you informed of the most import­ant devel­op­ments.