Introduction

On 16 December, the Minister of Social Affairs and Employment and the State Secretary for Taxation and the Tax Administration gave a detailed insight, in their “Progress Letter on working with and as self-employed person(s)“, into their plans regarding the assessment of working relationships. She wishes to narrow the grey area between employees and self-employed persons. There is still a steady increase in the number of self-employed persons in the Netherlands (now 1.2 million).

To restore balance in the labour market, the government has announced a number of tax and employment-law measures. The measures will jointly be taken along three lines, explained below.

1. Tax measures.

First, the government intends to create a more level playing field for the contract forms of employees and self-employed persons. The 2023 Tax Plan, which presented an accelerated phasing-out of the self-employed persons’ tax deduction (from €6,310 in 2022 to €900 in 2027) and the phasing-out of the fiscal old-age reserve, is intended to contribute to this.

2. Clarity on the qualification issue of self-employed worker or employee.

To give practice more clarity and guidance regarding the qualification of the working relationship, the government wants to lay down in legislation 3 elements from case law (the Deliveroo and Volksbank cases) that currently give substance to the open standard “in the service of“. This is also referred to as codification.

These elements are as follows:

I. Are instructions given and is supervision exercised over the work (material authority)?

II. Is the work organisationally “embedded” in the organisation of the employing party (formal authority)? In other words, do the activities form an essential part of the business activities (core business), and are there employees who do exactly the same work?

III. Is there independent entrepreneurship within a working relationship? Is investment made, does the self-employed worker work with their own tools and equipment, do they use their own materials, do they wear their own company clothing?

3. Legal presumption of an employment contract.

In addition, work will be done on a legal presumption of the existence of an employment contract. This will be linked to a rate threshold still to be determined (a minimum rate of €30 to €35 excluding VAT has previously been mentioned). This will have a certain preventive effect.

4. Lifting of the Tax Authority’s enforcement moratorium.

As a final measure, the Tax Authority wants to fully lift the enforcement moratorium as of 1 January 2025, with the aim that citizens and businesses will once again comply with the rules as much as possible of their own accord. To achieve this, the Tax Authority will actively cooperate with and provide assistance to parties who want to, and are able to, meet their tax and social obligations, and will pay more attention to files where doubts exist about the correct qualification of the working relationship. The question is whether, by that time, the Tax Authority will have its working capacity in order to be able to achieve this.

Steps in the legislative process.

The elements above will be further developed and elaborated in the coming period, so that a draft bill can be sent to the House of Representatives in early 2024. The intention is for the legislation to take effect in early 2025.

Final Deliveroo ruling on the qualification issue imminent.

Last but not least, in the new year — the date of which is not yet known — the Supreme Court’s ruling is expected, which could turn the Deliveroo riders into employees in one stroke. The Deliveroo riders are engaged as self-employed workers, but according to the riders themselves and their lawyers, they are falsely self-employed. They have claimed an employment relationship before the civil courts because they should be qualified as employees. This qualification issue has been fought all the way up to the Supreme Court, and we are now awaiting the final word on it. This ruling will have major consequences for those self-employed workers who currently also work on the basis of false self-employment but would rather not.

The issue, however, is that more and more self-employed workers themselves have given up their jobs specifically in order to become self-employed, because they believe they will end up keeping more, on balance. For self-employed workers with a high rate, that is probably true, but for self-employed workers receiving lower rates, that short-term thinking is dangerous. Both for themselves and for clients. After all, if such a self-employed worker temporarily gets less work, or becomes ill, or has a workplace accident and as a result has no income, the chance is greater that they will then claim an employment relationship.

Advice.

Make sure you anticipate this legislation in good time and think about the engagement of subcontractors, whether to reduce your flexible workforce or convert it into permanent staff instead. Would you, as a hirer or client, like to obtain advice on this from us? We have employment-law and self-employment experts who can think strategically with you, taking all (future) risks into account. Call us for an appointment on 020-3450152 or email us at 020 345 0152.

Masterclass.

On 23 March 2023 we are organising the topical masterclass ‘Managing the legal risks of your flexible workforce (flex workers and self-employed workers)‘. Corporate lawyers Hella Vercammen and Marit Mulder will explain the basic rules of the game to you and tell you how things stand with the DBA Act and the legal risk if a self-employed worker claims a permanent employment relationship with you.

For more information and to register: Click here