Introduction

An employer has a duty of care towards its employees. It must ensure that the employee has a safe working environment. The employer is liable for damage resulting from accidents if it fails to comply with its duty of care. But does this duty of care and liability also apply to a self-employed person without staff (zzp’er) whom the employer engages as a client to carry out a particular assignment? According to the Supreme Court, this can be the case under certain circumstances.

Ruling

This Supreme Court ruling concerned the liability of the hirer for damage suffered by a self-employed contractor. Central to this was the concept of “in the exercise of his profession or business” (art. 7:658 paragraph 4 of the Dutch Civil Code). The Supreme Court ruled that this provision is not limited to the essence of the profession or business operations of the client in question. This can also include work that factually forms part of it. In principle, self-employed contractors can hold the hirer liable for damage they suffer while carrying out the work. The self-employed contractor must demonstrate, with facts and circumstances, that the work performed by him factually formed part of the client’s business operations. However, the protection of article 7:658 of the Dutch Civil Code does not automatically apply to all self-employed contractors. Taking out incapacity-for-work insurance still remains the self-employed contractor’s own responsibility.

Practical tip

Self-employed contractors have the same legal protection as employees in the event of workplace accidents. Clients are liable for damage suffered by self-employed contractors if they do not take sufficient safety measures. Self-employed persons who carry out an assignment for a company on an individual basis do not fall under that company’s responsibility. But that is different if the self-employed contractor undertakes activities that are also usually carried out by the company’s ‘own’ employees. It is advisable to ensure a safe working environment and to be clear with safety instructions. Therefore, make sure you have a good subcontracting agreement in which extensive safety instructions are given that align with the CLA obligations in the sector (insofar as relevant). If you have any questions about the foregoing, or need professional legal assistance, please feel free to contact Ms. Hella Vercammen on 020-3450152 or email info@thelegalcompany.nl