Actually, the Agreement between the Newspaper and a Self-Employed Proofreader is an Employment Contract

According to the Sub-district Court, the agreement between an entrepreneur and a self-employed person was actually an employment contract. Therefore, the entrepreneur could not simply terminate the agreement and therefore the entrepreneur had to retroactively comply with all applicable statutory provisions for an employer.
In 2011, a newspaper entered into a freelance agreement with a person whose task as a proofreader it would be to detect and correct textual errors for the newspaper. At the start of the agreement, the Tax Authorities had granted the proofreader an Independent Contractor Status (Dutch: VAR) Declaration, certifying that, for tax purposes, any income from the employment relationship should be qualified as “income from other activities”.
The proofreader was remunerated in the form of an hourly rate excluding VAT, for which he sent invoices to the newspaper. The work was carried out in a team with three other proofreaders and their activities were spread over six evening and five afternoon shifts.
All work was carried out at the newspaper premises. During illness or holiday, they were replaced by the other two proofreaders. Working materials such as correction pens and a laptop were made available on a loan basis by the newspaper.
As of September 1, 2023, the newspaper terminated the agreement, because proofreaders would no longer be deployed. The proofreader then claimed that they had an employment contract and relied on protection against dismissal. According to him, not only should the newspaper deploy him again, but it should also make payments over the last five years for missed accrual of holiday allowance, holidays, allowances under the CLA, increases in the CLA wages, bonuses and pensions. The newspaper argued that none of them was applicable, since they only had an assignment agreement.
This was why the Sub-district Court had to rule on the question of whether there had been an employment contract or an assignment agreement. The Sub-district Court did so in compliance with the rules of the Supreme Court’s judgment of 2023 in the Deliveroo meal deliverers’ case. This meant that the Sub-district Court judge started with determining what rights and obligations the parties had agreed upon, based on the parties’ mutual expectations.
Then, the Sub-district Court checked whether the agreed rights and obligations met the legal criteria for an employment contract, irrespective of the parties’ intention to enter into an employment contract or not.
In order to determine the rights and obligations the parties did agree upon, the Sub-district Court followed the points mentioned by the Supreme Court in its Deliveroo judgment.
First point was the nature and duration of the work.
The Sub-district Court judge established that the work was carried out on a regular basis, in average for three days or half days per week. The newspaper determined how the work was to be carried out and, in connection with the newspaper's deadline, also when. On correcting, the proofreader had to comply with the agreements made by the newspaper in respect of spelling and style.
The second point, the Sub-district Court assessed was how the activities were embedded in the newspaper’s organization. In fact, for many years the proofreader had already worked as if he had been employed by the client.
As for the obligation to personally carry out the work, the Sub-district Court established that, this was actually the case, since in the absence of one of the proofreaders replacement had to be done by the other shift members.
When assessing the way in which the contractual arrangements had been established and the way in which the work was remunerated and paid, it was important, according to the Sub-district Court, that no substantial negotiation had taken place at the time the agreement was entered into.
According to the Sub-district Court, the amount of the income was relatively small, which in principle suggested an employment contract.
As the last points, the Sub-district Court assessed the commercial risk and the entrepreneurship.
The Sub-district Court noted that the proofreader's income was mostly accounted for by the newspaper. There was no commercial drive and there was no evidence of entrepreneurship in any other way. Insofar as there was other income, these could at most be characterized as work for third parties.
After all these findings, the Sub-district Court applied the so-called “holistic approach”, in which all facts and circumstances are regarded as interdependent elements. This leads the Sub-district Court to the conclusion that there was an employment contract. This implied that the agreement had been terminated in violation of the law. First and foremost, the proofreader was, therefore, entitled to payment of the outstanding remuneration as of September 1, 2023.
Since the newspaper no longer employed proofreaders, the newspaper was not obliged to enable the proofreader to resume his work. The Sub-district Court postponed its judgement for the remainder so as to give the parties the opportunity to discuss the amount of the unpaid wages and the other claims arising from the employment relationship, and the question of whether continuation of the employment relationship would be possible.

As of 2025, after nine years of employment relations "enforcement moratorium", the Tax Authorities will restore controls again whether agreements with workers, classified as self-employed, are not in fact employment contracts. Furthermore, he government has started preparations on a legislative proposal, designed to assess whether or not an employment contract is an employment contract within the meaning of the law. The only intention of the proposal is said to lay down existing jurisprudence in the law, but in reality it introduces a more stringent assessment in certain areas.
The Sub-district Court’s judgment in the above case shows that, even before 2025, entrepreneurs who work with self-employed persons run the risk of having to comply with the obligations under the law that apply to an employer.
The Sub-district Court’s judgment also clearly illustrates what problems may subsequently arise for an entrepreneur. It is not that easy to determine what the content of an employment contract is. For example, what exactly is the employee's salary? Of course, the parties’ original intention of the hourly proofreader’s compensation was to have an all-in compensation with a valuable consideration for certain risks that a self-employed person runs and an employee does not or does less, such as loss of income due to labour incapacity and pension. And if the remuneration for the self-employed person is a salary, will the holiday allowance be due? Should compensation be paid for untaken holidays? Should pension contributions as yet have to be paid? Should wage increases under the CLA apply?
The entrepreneur who later turns out to be an employer runs the risk of retroactively having to pay all this over five years. As far as the wages are concerned, in principle a 50% increase will be due for late payment. And in any case, the statutory interest will have to be reimbursed on all payments.
Entrepreneurs who currently work with self-employed persons are advised to do some serious soul-searching about whether it is wise to continue doing so, and if so, under what conditions they would.