On 12 November 2014, the subdistrict court in Bergen op Zoom delivered an interesting judgment on the question of whether there was an employment contract or an agreement for services.
This distinction is of great importance. If there is an employment contract, it means that all kinds of protective provisions in our law (continued payment of wages during illness, permission required for dismissal, minimum wage, notice periods, etc.) apply. What was the story. An employee first worked on the basis of an employment contract for a person in need of care (a private individual with a PGB budget). At the time, there was an employment contract. On 1 March 2013, the PGB budget holder and the care employee entered into a new agreement. This clearly stated that this was no longer an employment agreement but a contract of assignment with a freelancer.
Subsequently, a few months later, the PGB employee terminated the contract. The care employee then took the position that based on labour law a notice period should have been observed. The Subdistrict Court ruled that no notice period needed to be observed and that there was no employment contract. Not only the name above the contract was changed from 'employment contract' to 'freelance contract'. Also the number of working hours went from a fixed number to a flexible number. In addition, a higher remuneration was agreed upon, whereby nothing was agreed about holiday pay and hours. Finally, the care employee also applied for and was granted a Declaration of Working Relationship (VAR). On the basis of all this, the Subdistrict Court ruled that it had been the parties' clear intention to organise their collaboration differently and that this had indeed been the case in practice.
Where from the outside there was little difference between the first and the second agreement, in a legal sense a big difference has been established. In this context, it is important to know that a number of bills are currently being debated in the Lower and Upper Houses of the Dutch parliament, as a result of which, for example, there is talk of a minimum wage for self-employed persons, abolition of the VAR, etc. Tackling false self-employment is one of the government's spearheads. Therefore, self-employed persons and their principals should take into account the changing rules of the game with regard to their cooperation.
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