Security Guard who Seconded Himself as a Self-employed Person Did not Work under an Employment Contract

Security Guard who Seconded Himself as a Self-employed Person Did not Work under an Employment Contract
Date: 09-06-2024
Year of publication en number of publication: 2024 / 555
Reference: Sub-district Court of Tilburg, April 26, 2024, ECLI:NL:RBZWB:2024:3259

The agreements between two affiliated clients and a security guard were no employment contracts, given the security guard's freedom to either perform the agreed work or not to do so, and given the fact that he charged his security fee with an invoice that included VAT.
As of October 2022, a security guard had seconded himself as a self-employed person in several assignments from two affiliated Private Companies. In September 2023, the then current assignment was terminated, because the security guard had left the designated object during his shift to take a message. This, eventually resulted in the security guard’s appeal to the Sub-district Court requesting it to declare that, as of October 2022, he had worked on the basis of employment contracts that had not legally been terminated. The security guard then claimed to have been wrongly dismissed, and, for that reason, to still be entitled to continued payment of the wages.

The Sub-district Court assessed the employment relationship based on the criteria set by the Supreme Court in its judgment of 2023 on the employment relationship of the Deliveroo meal deliverers. These criteria were gone through one by one, after which the Sub-district Court drew its conclusion, based on all the criteria: the so-called “holistic weighing”.
The first criterion was how the work and the working hours were determined.
The Sub-district Court established that the security guard periodically had to state his availability after which he was scheduled, but also that the security guard could cancel a shift up to 72 hours before its start.
The second criterion was the “embedding” of the work in the client’s and the performer’s organizations.
The Sub-district Court considered the work to be embedded because the security guard did the same work as the employed colleagues and because he had to wear the client's company clothing. The Sub-district Court could not confirm whether the security guard was personally embedded in the client's organization. Even though there were a few instructions the security guard had to comply with, the mere fact that a client prescribes certain basic rules to a contractor and that he monitors compliance with them, can in no way mean that the contractor is embedded in the client's organization.
The third criterion was the obligation to perform the work personally.
The Sub-district Court determined that the security guard was not entitled to have himself replaced.
The fourth criterion was how the agreement had been reached.
From the parties' respective positions and the documents submitted, the Sub-district Court could not determine the reason or reasons underlying the reached agreements.
The fifth criterion was the reward and the method of payment.
On this point, the Sub-district Court established that the security guard sent invoices to the client and that the compensation was much higher than the hourly wage an employee of the client would have received.
The sixth criterion was the commercial risk and the entrepreneurship.
The security guard was liable for damage that might be suffered by a third party in the performance of his work and he was obliged to take out insurance for it. The security guard was not limited in the number of clients he would take on.
On the invoices submitted VAT had also been invoiced
Based on a weighing of all these criteria together, the Sub-district Court concluded that there was an assignment contract. The decisive criteria for the Sub-district Court were that the security guard could state his availability prior to the planning, that he could subsequently cancel shifts and that the security guard behaved as an entrepreneur by sending invoices with VAT for the agreed compensation.
This Sub-district Court’s conclusion implied that the Sub-district Court was not the competent Court to hear the security guard's claim for payment of wages. The case was therefore referred to the Civil Chamber of the District Court for further action.


As of January 1, 2025, the question of whether an employment relationship of a self-employed person is an employment contract within the meaning of the law will take on increasing significance, because it is the date for the tax authorities to impose additional taxes again if it is later found that the assignment contract with a self-employed person was in fact an employment contract with an employee.
It is the government’s intention to submit a bill providing more specific regulations on how to determine whether an employment relationship is an employment contract within the meaning of the law. In the future it will need to be examined whether the work is supervised or monitored or whether the work is embedded in the client's organization, in which case the conclusion has to be that there is an employment contract, unless there are contra-indications of the existence of self-employment that are so strong that the conclusion that there is no employment contract is irrefutable.
Unlike the Deliveroo judgment of the Supreme Court, where being an entrepreneur in the economic traffic was concerned, pursuant to the bill, the aspects of self-employment shall exclusively relate to the facts within the employment relationship to be assessed.