The debate about the legal position of self-employed persons without personnel (zzp'ers) is more topical than ever. From January 1, 2025, the tax authorities will again actively enforce against false self-employment. In the meantime, employers and clients must make do with existing legislation and case law. And that case law now offers clear guidance. In this blog we discuss two recent cases in which judges ruled on the question whether there was an employment contract or self-employment. In addition, we summarize the main learning points from the Supreme Court's Deliveroo judgment.
Nail stylist with entrepreneurial freedom
The first case involved a nail technician who had registered with the Chamber of Commerce and worked independently at a beauty salon. She sent invoices with VAT and arranged her own vacations and working hours. When the partnership was terminated, she argued that it was still an employment contract and not ZZP and claimed fair compensation for wrongful dismissal.
The judge ruled that there was no employment contract. The woman had entrepreneurial freedom: she was not obliged to work at fixed times, was allowed to serve her own clients and was responsible for her own administration. The fact that she wore company clothing did not detract from this. There was no pay in the legal sense, nor was there a relationship of authority. With this, the court correctly applied the line from the Deliveroo judgment: all the circumstances of the case are decisive, not just how the parties name the partnership.
Vacation park managers: no self-employed despite verbal agreement
In another case, the court came to an entirely different conclusion. Two managers of a vacation park argued that they were entitled to notice pay when their work ended. The employer argued that they were not employees, but self-employed workers without an employment contract. Nevertheless, the subdistrict court awarded the compensation. Why?
The complex of facts showed that the managers were not free to determine working hours or work content themselves. They had to be present every day, worked according to instructions from an operations manager and could not be replaced. They also drove a company car, resided in an official residence and were not at financial risk. Moreover, they had no VAT number and were not registered with the Chamber of Commerce. In short: all the classic characteristics of being an employee were present. The judge concluded that they did have an employment contract and not as ZZP.
What does the Supreme Court say in the Deliveroo ruling?
The Deliveroo ruling remains the legal benchmark in cases of doubt. In it, the Supreme Court reiterated that for the qualification of an employment contract, it is not the intention of the parties that is leading, but the actual performance of the agreements. There are three core criteria: employment, wages and authority. If these elements are met, there is an employment contract and not a zzp, regardless of what legal form the parties give it.
The Supreme Court emphasized that even with a lot of freedom (such as the freedom to refuse assignments or be replaced), there can still be a relationship of authority. Especially if the client gives substantive instructions, supervises via digital systems or fully controls payment. In Deliveroo's case, one factor weighed in that delivery drivers worked through an app in which they were tracked, received bonuses and that customers saw them as part of the platform.
Conclusion: look beyond the deal
The dividing line between self-employment and employment is determined by practice. A Chamber of Commerce registration and invoices with VAT are not sufficient to make self-employment plausible. The freedom to determine working hours is also not decisive. Look at issues such as replaceability, entrepreneurial risk, embedding in the organization and authority to instruct. All circumstances of the case must be weighed together.
For clients: do you really want to work with ZZP'ers? Then make sure their working conditions actually fit with entrepreneurship. And in doubt? Seek advice before signing a contract. The cost of "cleaning up the mess" afterwards is often much higher.
This blog was written by mr. Stijn Blom, employment lawyer at Arbeidsadvocaat.nl B.V. Stijn has extensive experience in employment law and supports entrepreneurs and employees on a daily basis with a variety of employment law issues. From dismissal cases to drafting watertight contracts and regulations - with his practical and personal approach, he helps employers and employees move forward. Want to know more? Visit Stijn's page.
Arbeidsadvocaat.nl is happy to think with you if you have questions about ZZP'ers. Please feel free to contact us .
April 2025
