The pole dancer and the club

Employment Law

24 October 2024

Stelt u zich eens voor: u werkt al jaren met dezelfde zelfstandige. Hij stuurt facturen, factureert btw en heeft een eigen kvk-nummer. Toch krijgt u in 2026 ineens vragen van de Belastingdienst over de aard van uw samenwerking. Hoe heeft het zo ver kunnen komen?

It sounds like the title of a book, but it is the harsh reality of an entertainment performer who was underpaid and a club that ultimately has to pay her more than 25,000 euros in back pay.

What are the facts?

A woman worked from 2010 to 2020 as a pole dancer (with the tidy job title of “entertainment performer”) at a club. She was hired through Tempo-Team as a temp worker. The dancer argues that she had to be present for six to seven hours per working day, but was only paid for four hours. Due to the coronavirus pandemic, the club had to close and she was left without work and without income. She filed a wage claim. The subdistrict court granted her claim. On appeal, the Court of Appeal upheld this judgment. Click here for the ruling.

Working simultaneously under an employment contract and as a self-employed person?

The Court of Appeal had to determine whether all the hours worked fell under the employment contract, or whether the woman also worked partly as a self-employed person. The club argued that, while she performed work as a pole dancer as a temp worker, the activities in the “séparée” — a separate room she had to rent from the club — were carried out as a self-employed person. She was allowed to keep the proceeds of the private performances she gave there. For her work as a pole dancer, she was paid the minimum wage.

The Court of Appeal clearly sets out how it assesses the distinction between an employment contract and working as a self-employed person. Under Article 7:610 of the Dutch Civil Code, there is an employment contract if a person performs work in the service of an employer in exchange for pay. The Court of Appeal refers here to the recent Deliveroo ruling. That ruling held that all the circumstances must be assessed together, such as, among other things, the nature of the work, the working hours, the relationship of authority, and whether the person bears economic risk or behaves as an entrepreneur.

There was a written temporary employment agreement (a special form of employment contract) between the woman and Tempo-Team, under which she was hired by the club as an entertainment performer. The club gave written instructions about her work, such as the pole dance and lap dance performances. The woman received direct payments from clients for lap dances, but the tips were not regarded as pay.

The woman worked exclusively for the club. She had no other work. She was not registered with the Chamber of Commerce, and no VAT was remitted. She did not behave as a self-employed person. She had to be present for six to seven hours per shift (from 8 pm to 2 or 3 am), and she had no freedom to take breaks, leave the workplace, or cancel a shift. Even during unpaid hours, she was expected to entertain those present and contribute to drink sales. If drink sales were not high enough, she was reprimanded for it.

The Court of Appeal’s conclusion and retroactive effect

The Court of Appeal concludes that all the hours worked by the dancer fall under the employment contract and rejects the club’s appeal. The woman is entitled to the outstanding pay. This means the dancer is entitled to outstanding pay retroactively over almost 4 full years. She filed her claim in 2020. Because wage claims can only go back a maximum of 5 years, she can no longer claim anything for the 2010-2015 period. In the end, she is now entitled to more than 25,000 euros for the years 2016-2019, in the form of pay, statutory interest, and the statutory increase. The question is whether the pole dancer, as a Tempo-Team temp worker, can now look back and say: “Those were 10 fantastic years...”

What can you do to prevent this?

Work with a clear agreement and make clear arrangements about the number of hours an employee works.
Do not work with “hybrid forms” combining an employment contract and a contract for services alongside each other.
Please note: if an employee is required by the employer to be present but does not have the freedom to use that time as they see fit, this very quickly amounts to working time that must also be paid. We recently wrote a blog about this.

Ask the lawyers at The Legal Company for legal advice in advance for unusual work situations, so you avoid high costs from wage claims later on. Contact us directly via info@thelegalcompany.nl or call 020 345 0152.

De afgelopen jaren stonden in het teken van de Wet VBAR, het wetsvoorstel dat een einde moest maken aan onduidelijkheid over de zzp’er. Het kabinet heeft delen van dat voorstel inmiddels geschrapt. Op het eerste gezicht is dat goed nieuws: minder regels, minder administratieve last. Maar in de praktijk blijven dezelfde toetsen overeind.

“De inhoud van de samenwerking is leidend, niet wat er op papier staat.”

De Belastingdienst handhaaft sinds 1 januari 2025 weer actief op schijnzelfstandigheid. En recente uitspraken van de Hoge Raad bevestigen dat rechters strikt toetsen of er sprake is van ondergeschiktheid en gezagsverhouding.

Voor uw praktijk betekent dit drie dingen. Een: leg de samenwerking duidelijk vast, met aandacht voor de inhoud. Twee: voorkom dat een zzp’er feitelijk werkt als werknemer. Drie: wees voorbereid op een controle, en weet hoe u de relatie kunt herzien als dat moet.

Heeft u vragen over uw concrete situatie? Wij sparren dagelijks met opdrachtgevers over hun zzp-relaties. Vraag een offerte op of bekijk onze Legal Safe abonnementen.