Reaction to Supreme Court ruling on employment relationship qualification

The Social Affairs and Employment Minister, Wouter Koolmees, in a letter to the Lower House of the Dutch Parliament has reacted to the “employment relationship qualification” ruling which the Supreme Court recently handed down, to the effect that that the intention of the parties themselves should play no part as a criterion in deciding whether an employment relationship is or is not being entertained between said parties. The case revolved around a recipient of social benefits who in the context of a participation action plan had been performing unpaid work without forfeiting his benefit entitlement, and who had argued that he was entitled to collecting wages given that his duties had been identical to those performed by paid members of staff. The decisive criterion according to the Supreme Court ruling had to be whether the mutually agreed rights and obligations matched the statutory definition of an employment relationship; if they did, it automatically followed that the association had to be treated as an employment relationship. Allowances could be made, by contrast, for the intentions of the parties involved where it concerned the precise rights and obligations having been agreed between them.

Mr Koolmees in his letter confirmed the web module in appraisal of employment relationships as being in line with the Supreme Court ruling. Assessment by the Tax and Customs Administration of model agreements on whether work is being performed in a non-employment relationship context has been taking place since mid-2015. The ruling has prompted revision of the texts of the model agreements and the assessment framework, in that the sample texts will no longer feature as marked provisions the paragraphs addressing the wish to enter into contract on the basis of an agreement for the performance of particular services or that of not entering into an employment relationship.

One of the criteria in support of an employment contract being entertained is that of authority. The Supreme Court in its ruling has paid no heed to the national Labour Regulation Committee’s recent issue of recommendations in modernisation of the authority criterion. According to Mr Koolmees, modernisation of the authority criterion involved a decision that should be left to a new Cabinet. It would be appropriate, he went on to state, to look more closely into whether and if so, in what manner a legal presumption of employment might be helpful in support of vulnerable members of the working population in particular. The downside of this would be that it might leave self-employed individuals no choice but to claim self-employed status for themselves, which might not be a feasible from an EU regulatory perspective.

Dutch version: Reactie op arrest Hoge Raad over kwalificatie arbeidsrelatie