Risks not only fiscally but also labour-related

Social media is overflowing with it and all the ‘zzp experts’ are tumbling over each other: the tax authorities have resumed enforcement of the DBA Act from 1 January 2025. What does that mean in practice? And has as of that date actually changed as much as is often thought? In this article, we provide an overview of the main issues in the present, past and future.

New: enforcement of DBA Act by Tax Authorities

The Deregulation of Assessment of Employment Relations Act (DBA Act) will be fully enforced again from 1 January this year. In other words, the tax authorities will check for false self-employment. Clients who hire zzp'ers for work they do not perform independently run the risk of fines, correction obligations and additional taxes. That is no fun! Note: if it turns out that self-employed workers are actually employees, the tax authorities can go back as far as 1 January this year.

Existing but still valid: the Deliveroo criteria

So tax enforcement is back on track. But the assessment framework used in this respect has been around for much longer, and is the same as the labour law assessment framework, namely: the Supreme Court's criteria from the Deliveroo judgment (the well-known home-delivery company that has since disappeared from our country). This ruling dates back to 24 March 2023, is still valid and also affects tax enforcement.

All the more reason to reiterate the Supreme Court's view. When is someone a ‘real’ self-employed person (with a contract for services) or still an employee (with an employment contract)? The law provides in section 7:610 of the Civil Code that the following questions are relevant in this context:

• Is labour being performed?
• Is there any question of wages?
• Is there (employer) authority?
  .

Since both self-employed persons and employees perform work and receive compensation for it, the third point is decisive: the authority criterion. According to the Supreme Court, all the circumstances of the case, taken together, must be considered in order to determine whether there is an assignment contract or an employment contract. In order to colour this - nevertheless somewhat vague - criterion, the Supreme Court formulated 9 points of view:

• The nature and duration of the work
• How will work and working hours be determined?
• To what extent are the activities and the contractor part of the client's organisation, and therefore ‘embedded’?
• Is there an obligation to perform the work personally, or can the contractor be substituted?
• How were the agreements reached?
• In what way is the reward determined?
• What is the level of remuneration (also compared to salaried staff)?
• To what extent is the contractor exposed to commercial risk?
• To what extent does or can the contractor behave as an entrepreneur?
  .

So an overall assessment takes place, based on these points of view. Again: this is also how the tax authorities will test. However, the risk for principals is not purely tax-related: if a self-employed person can still be regarded as an employee on the basis of ‘Deliveroo’, he or she can also make claims against the principal. After all, the pseudo self-employed person then has all the rights and obligations of an employee (with retroactive effect). So also salary, sick pay, holidays, holiday pay, pension, premium payments and so on! This can go back five years.

In short, the labour law and tax assessment frameworks are both based on the Deliveroo ruling. But the employment law consequences can potentially be much more far-reaching than the tax consequences. It is possible that not all clients give this enough thought.

Future: law VBAR

As the overall tendency of the Dutch legislator is to make self-employment less attractive, a proposal for the VBAR (Verduidelijking beoordeling arbeidsrelaties en rechtsvermoeden) law is being prepared. This law should replace the DBA Act. The VBAR Act provides an assessment framework that should clarify the distinction between employees and the self-employed and reduce false self-employment. The VBAR Act will also rely heavily on case law that is already in place, including ‘Deliveroo’.

Conclusion

Since the Deliveroo criteria have been in place for almost two years, not as much will have changed by 1 January 2025 as is currently being shouted. After all, self-employed people who are actually employees in disguise can already claim the necessary rights! Tax enforcement has now been added. All the more reason - both as a self-employed person and as a client - to take a close look at the practice. What is put on paper between the parties is not decisive, but it can help. Would you also like to have your working methods scrutinised and have a risk scan carried out? SPEE advocaten & mediation will be happy to help you with this.