Rotterdam District Court follows Supreme Court line in recent Uber ruling
In a recent ruling, the Rotterdam District Court passed judgement on the employment relationship of a manager at a pancake restaurant. The central question was: was the manager an employee or did he act as a self-employed person? This verdict is particularly interesting because it is the first court decision after the groundbreaking Uber ruling by the Supreme Court in February of this year, which we wrote about previously.
What is the case about?
After terminating their collaboration, the manager wanted to receive a transition payment, a payment to which only employees are entitled, not self-employed persons. The court therefore had to determine whether this case involved an employment contract or a contract for services.
In order to reach a verdict, the judge went through the now familiar list of criteria used by the Supreme Court in the Uber ruling. It is important to note that the Supreme Court ruled that no single criterion outweighs the others: all circumstances together determine the nature of the (employment) relationship.
The consideration of the Rotterdam District Court
In accordance with the Uber criteria, the District Court in Rotterdam included the following factors in its assessment:
Authority and instructions:the restaurant largely determined when and how work had to be done. This points to an employment contract.
Clothing and activities: the manager wore company clothing (not purchased by him/herself) and performed the same activities as other employees. This also points to an employment contract.
Leave and performance reviews: the manager was not entitled to leave and no performance reviews took place. This points to self-employment.
Personal labour: there was no explicit obligation for the manager to carry out the work personally. This indicates an employment contract.
Contract form and intention: the manager deliberately chose a contract for services at the time and a model contract for services was actually signed. This indicates self-employment.
Remuneration and tax treatment: the manager invoiced €30 per hour (including VAT), did not receive payslips and no payroll tax was withheld. The remuneration was higher than that of regular employees, which indicates self-employment.
Entrepreneurial characteristics:the manager had his own professional liability insurance, was a registered sole trader and also worked for other clients. These are strong indications of self-employment.
The verdict of the Rotterdam District Court
The court ultimately concluded that, given all the facts and circumstances, there was no employment contract. The relationship between the restaurant and the manager was more like that of client and contractor than that of employer and employee, according to the court. The claim for a transition payment was therefore rejected.
Is this ruling similar to the Uber ruling?
The answer is yes. The judge did not apply a fixed ranking order between the criteria — exactly as prescribed by the Supreme Court in February. ‘Entrepreneurship’ was not seen as less important than other aspects such as authority or the obligation to work personally.
Read the ruling here.
Conclusion
The ruling confirms that someone can be considered self-employed, even if there are also characteristics that point to employment – as long as the overall picture of the facts and circumstances leans towards self-employment.
At SPEE advocaten & mediation, we continue to closely follow developments in labour law and we will of course be happy to keep you informed. Do you have questions about your own (employment) relationship or that of your employees and/or contractor? Feel free to contact us for customised legal advice.