HR in Healthcare – 3. False Self-Employment

Many healthcare organizations work with self-employed professionals (zzp’ers). The question, however, is whether there is actually independence or whether, in practice, the moratorium on enforcement under the Deregulation of Employment Relationships Act was lifted as of January 1, 2025. This means that the Dutch Tax Authority now strictly enforces false self-employment and can impose corrective obligations, additional assessments, and fines retroactively. In addition, a zzp’er, a union, or a pension fund can claim before the court that an employment contract exists, with all the associated consequences.

When is there false self-employment and what are the consequences of false self-employment? And is it even possible to work with zzp’ers in healthcare? These are questions that occupy many healthcare organizations. This blog addresses these points.

Many healthcare organizations work with zzp’ers. But are these zzp’ers really independent? Since January 1, 2025, the enforcement moratorium has been lifted. This means that the Tax Authority can (retroactively) impose additional assessments and fines. In addition, false self-employment can also have employment law consequences.

When is there false self-employment? What are the risks? And is working with zzp’ers in healthcare still possible?

The following factors are relevant when assessing the employment relationship:

1. The nature and duration of the work
2. The way in which the work and working hours are determined
3. The degree to which the work and the contractor are part of the client’s organization (organizational embedding)
4. Whether there is an obligation to perform the work personally
5. The way in which agreements are made
6. The way in which remuneration is determined and paid
7. The amount of remuneration: is the remuneration comparable to that of employees?
8. The degree to which the contractor bears commercial risk. Consider:
   The degree to which the contractor behaves or can behave as an entrepreneur (external entrepreneurship)

Do's

• Assign tasks with a result obligation
• Engage a zzp’er for specialized work
• Short assignments
• Allow the zzp’er freedom to determine method, working hours, and location
• Allow the use of their own materials
• Do not allow participation in staff activities
• Engage for work that is not part of the organization’s core operations
• Allow substitution
• Pay more than an employee (for the same work)
• Allow work for competitors

Dont's

• Assign tasks with an effort obligation
• Engage a zzp’er for simple work
• Long-term assignments (years)
• Determine method, working hours, and location for the zzp’er
• Provide materials to the zzp’er
• Include the zzp’er in staff activities
• Engage for work that is part of the organization’s core operations
• Require the work to be performed personally
• Pay remuneration comparable to an employee’s wage
• Prohibit work for competitors

Als de arbeidsrelatie kwalificeert als arbeidsovereenkomst, dan heeft dit arbeidsrechtelijke én fiscale gevolgen.

Employment Law Consequences:

• Continued payment during illness: the zzp’er is entitled to continued payment of wages during sickness
  Vacation rights: an employee is entitled to paid vacation and holiday allowance
  Dismissal protection: the employment relationship cannot be terminated arbitrarily; dismissal rules apply
• Other employment conditions: all rights under any applicable collective agreement and other regulations apply, including pension accrual and bonus schemes. These can be claimed retroactively up to five years.

Fiscal Consequences:

• Payroll taxes: The client is considered the employer and must pay income tax and social security contributions retroactively, including interest. In principle, retroactive enforcement does not go further back than January 1, 2025.
• Fines: The Tax Authority can impose administrative and penalty fines for failure to comply with payroll tax obligations. There is a one-year transition period (the “soft landing”), during which the Tax Authority does not impose fines if the client can show that measures are being taken against false self-employment. From January 1, 2026, the Tax Authority will enforce fully.

Is it still possible to work with zzp’ers in healthcare? This is a question that occupies many healthcare organizations. The answer is not straightforward, and the assessment may differ depending on the concrete circumstances of the case. The difficulty is that the work is often embedded in the organization, which is hard to change. In that case, it is important to structure the other factors to indicate independence. In our view, this is not impossible.

Consider the following:

• Agree on clear results instead of the zzp’er working a certain number of hours per week. For example, a certain caseload.
• Engage zzp’ers who have specific expertise in a particular area.
• Assign a specific change project.
• Give zzp’ers room and freedom for negotiation.
• Treat the zzp’er as a solo healthcare professional.
• Do not automatically include the zzp’er in team meetings, only if necessary for proper execution of their assignment.
• Allow the zzp’er to largely determine their own working hours. Of course, this is not possible everywhere in healthcare (e.g., ICU).

BoZ+ and Deloitte developed the Fiscaal Kompas ZZP Zorg, a practical guide to limit fiscal risks regarding payroll taxes and substantiate the independent status of healthcare professionals. It is widely applied in healthcare. You can read more in our blog Fiscaal Kompas voor zzp’ers in de zorg.

Assess the risk of false self-employment:

• Use the web module as a guide for assessment
• Use the steps in the Fiscal Compass. Note: it is only a support tool and does not guarantee against Tax Authority enforcement
  • In case of clear false self-employment, consider alternatives:
  • Permanent or temporary employment contracts with flexibility within the contract
  • Hiring via an intermediary agency
  • Hiring self-employed professionals organized in a cooperative or partnership. For example, the MSB structure, where self-employed medical specialists unite in an MSB and the MSB signs a cooperation agreement with the hospital, usually the sole client. There is much debate about this structure and whether medical specialists should be required to be employees.

Measures against false self-employment:

• Be creative and consider ways to structure the assignment to indicate independence. This is especially important when drafting the assignment.
• Document all actions and measures taken against false self-employment to demonstrate to the Tax Authority which steps have been taken to prevent false self-employment.

Do you have questions about employment law in the healthcare context? Please contact Sietske Bos, Attorney at law in Employment Law, or Ymke Stam,  Legal Assistant Employment Law, both are highly active in advising healthcare organizations.

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