If someone performs work for a client, the nature of that work determines whether there is an employment contract. Earlier agreements between the two parties are then of no importance, the Supreme Court ruled on Friday in a case between the municipality of Amsterdam and someone who did participation work. For many freelancers, the ruling may mean that their assignments actually amount to an employment contract.
The case itself was about a woman on benefits who worked for months as a service desk employee for the municipality. It was agreed that this would be done as unpaid work for a participation process, which should increase the chance of a return to the labor market. But according to the woman, she did the same work as colleagues who had an employment contract, so she demanded that.
The subdistrict court and the court found the woman wrong. The Supreme Court does the same, but with the caveat that lower courts gave the wrong reasons. Namely, they wrongly ruled that there was no employment contract, simply because this had never been the intention. The highest civil court in the Netherlands has put an end to that explanation. According to the Supreme Court, it is the practice in the workplace, i.e. which agreements about rights and obligations there are, that determines whether there is an employment contract
With the ruling, the Supreme Court largely followed the advocate general, who gave advice on the matter earlier this year. In that opinion, the Advocate General stated that the determination of whether or not there is an employment contract can also have consequences for self-employed persons. It is true that a large number of them have agreed to do their work as entrepreneurs, but practice shows that they are employees in disguise.
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