Back in the day, employees went to (local) agencies to look for a job and wrote application letters to potential employers. Nowadays, people offer and seek jobs via digital platforms as either an employee or as a self-employed person. The difference between these two persons has become less clear because of the platform economy. If you are an employer in the Netherlands, you are aware of the increase in legal disputes on this topic and wonder how it happened while the Dutch Labor Law has not changed the legal requirements for the existence of a labor agreement. Though, the main question is: How can you distinguish a self-employed person from an employee under Dutch Labor Law?
In this blog, we explain the difference between a self-employed person (ZZP) and an employee under the Dutch Labor Law. Thereafter, we elucidate the difference between a ZZP and an employee in the Dutch case-law. By dividing these parts, you will understand why it is (more) difficult nowadays to distinguish a ZZP from an employee. In the conclusion, we answer the main question of the blog.
What is the difference between a self-employed person and an employee, according to the Dutch Labor Law?
According to the Dutch Civil Code, a labor agreement exists when the employee:
- is personally obliged to conduct the agreed upon work;
- receives salary from the employer for performing the work;
- is subordinate to the employer; and
- conducts the agreed upon work for a period of time.
Considering the abovementioned criteria, a ZZP could also fulfill these legal requirements in practice. Just like an employee, a ZZP is hired by his client to perform certain work in return for salary. The only differences so far are in terms of terminology. Nothing is what it seems, however. Under the Dutch Labor Law, the difference between a ZZP and an employee is the authoritarian relationship with the employer. A ZZP may have to follow some instructions from his ‘employer’ (=client), but he is not subordinate to his client.
What is the difference between a self-employed person and an employee according to the Dutch case-law?
The difference between a ZZP and an employee was also rather clear in the case-law because of a judgement of the Dutch Supreme Court in 1997.[1] As a result of that judgment, parties would insert a clause in the contract, stating whether parties intend to conclude a labor contract or an assignment agreement and whether there was a subordinate relationship between the parties. This became the standard practice.
When the Dutch Supreme Court rendered a ruling in another case in 2020, it became evident that parties had had an incorrect interpretation of the 1997-ruling all along.[2] All of a sudden, the standard practice for over 20 years could no longer continue to exist in the same way.
Due to the 2020-ruling, the intention of the parties is no longer the decisive factor for the existence of a labor agreement. One must look at ‘the actual execution of the agreement.’ Since the 2020-ruling did not (sufficiently) explain what ‘the actual execution of the agreement’ means, the Dutch courts had to decide on a case-by-case basis which led to divergencies in the case-law.
In 2023, the Dutch Supreme Court clarified in the case between Deliveroo against the FNV (Dutch Union) how the Dutch courts must investigate ‘the actual execution of the agreement’. They must look at several criteria, such as:
- both the nature and the duration of the work;
- how the work and working hours are decided;
- the embedding of the work and of the person performing the activities in the organization.
Please note that the list is unexhaustive and that one criterion does not take prevalence over another. The Dutch Supreme Court affirmed this on the 21st of February 2025 in answer to prejudicial questions from the high court in the case of Uber against the FNV. As a result of the new line of case-law, the difference between a ZZP and an employee depends on a multitude of factors which brings us to the conclusion of this blog post.
Conclusion: how to distinguish a self-employed person from an employee?
The answer is simple at first glance. Whereas an employee is subordinate to the employer, there is no hierarchical relationship between the ‘employer’ (=client) and the ZZP. At second glance, however, the answer is more complicated than it was in the past. It is not sufficient (anymore) to look at the intention of the parties.
Given the development of the platform economy and its influence on the Dutch labor market, it is prudent to seek legal advice on this matter. Our office can help you by, for instance, reviewing (labor) contracts.
If you have any further questions after reading this topic, please do not hesitate to contact our office via telephone number 030 2300 230 or e-mail info@amice-advocaten.nl
[1] HR 14 november 1997, (Groen/Schroevers).
[2] HR 6 november 2020, (X/Gemeente Amsterdam).