Employee or independent contractor: A collaboration of over 2.5 years

The parties had a collaboration of over 2.5 years and had signed multiple 'consulting agreements' during that period. After a dispute, the wholesale company decided to terminate the agreement. Interestingly, the wholesale company also issued a summary dismissal, in case there was an employment contract. The sales manager did not accept this and initiated a procedure claiming that the parties had entered into an employment contract. Spoiler alert: according to the Rotterdam District Court, there was no employment contract.

Assessment

The judge assesses whether the 'consulting agreement' between the parties should be classified as an employment contract or a contract for services. To determine whether there is an employment contract, it must be established what rights and obligations the parties have agreed upon. Subsequently, it must be examined whether these rights and obligations meet the legal definition of an employment contract. All circumstances, viewed in conjunction, are important for this. The judge particularly looks at the nine points mentioned by the Supreme Court in the Deliveroo judgment.

According to the judge, the following circumstances of the working relationship indicate an employment contract:

• The work the sales manager did fit within the organization of the wholesale company.
• The sales manager had an email address, phone, and laptop from the wholesale company.
• The sales manager could not be replaced and never was.

However, the judge also notes circumstances of the working relationship that indicate a contract for services:

• The sales manager had expertise in sales in the agricultural sector.
• The agreements had a limited duration (one year per agreement). Notably, the court does not consider the total duration of the collaboration of 2.5 years.
• The sales manager could determine how much time was needed to fulfill their tasks.
• There were no employees in permanent employment performing the same work.
• The sales manager was not bound by the wholesale company's regulations and did not participate in company training or performance reviews.
• The sales manager wanted to work based on a contract for services, drafted the agreement themselves, and worked as a freelancer before and after their assignment with the wholesale company.
• The sales manager invoiced the wholesale company twice a month and paid their own taxes on the received compensation.
• The compensation the sales manager received was twice as high as what they would have received in this role as an employee.
• If the sales manager did not work, they could not claim the agreed compensation.
• The wholesale company did not take out insurance that the sales manager could claim if they caused damage to a third party during work.
• The sales manager invoiced the wholesale company on behalf of two different companies and became a 5% shareholder of the wholesale company. They were also allowed to perform work for others and could determine the order of their tasks.

Based on the above circumstances, the judge concludes that there is no employment contract. The wholesale company and the sales manager behaved more like a client and contractor than an employer and employee.

This ruling does not concern the enforcement by the Tax Authorities, which has been widely discussed, but a procedure initiated by the sales manager themselves. This was possible before January 1, 2025, and still is. Note: If there is an employment contract, the relevant employee can, in principle, claim employment conditions retroactively for up to 5 years.

Read the full ruling here.

For questions about false self-employment, you can contact Jaouad Seghrouchni, Employment and Employee Participation Attorney.

Would you like to receive a monthly overview of updates and blogs in your mailbox? Click here to subscribe to the newsletter!