It is not always clear whether a working relationship involves an employment contract or not. However, much depends on the answer to that question, such as whether payroll tax should be withheld and social security contributions paid. The Tax and Customs Administration offers various model agreements on its website, which can be used when entering into employment relationships that do not involve an employment contract. If a model agreement is used (and the parties actually behave in this way), the parties can in principle rely on the fact that the Tax and Customs Administration will not qualify the agreement as an employment contract.
One of the model agreements, namely the model agreement “free replacement”, has expired with effect from 1 January 2024. This is the result of the Deliveroo judgment of the Supreme Court. In this judgment, the Supreme Court considered that even if an employee can be replaced, there can be talk of working in an employment relationship (employment contract).
Due to the expiry of the model agreement “free replacement”, the Tax and Customs Administration has advised to reassess every employment relationship laid down in the model agreement “free replacement” before 1 January 2024 (is there an assignment or employment contract?) and to amend the agreement if necessary.
If, after 1 January 2024, the model agreement “free replacement” is still used, the Tax and Customs Administration may take the position that the agreement (partially) qualifies as an employment contract. In that case, the Tax and Customs Administration will issue an instruction to adjust the employment relationship, which is usually given three months. If the instruction has not been followed or has not been followed sufficiently, the Tax and Customs Administration may impose correction obligations or additional assessments. Until 1 January 2025, however, there is a “moratorium” that means that the Tax and Customs Administration hardly enforces it, unless there is “malicious intent”. This is the case when there is clearly an employment relationship.
Finally, it is important to note that an opinion of the Tax and Customs Administration is a tax assessment. In a recent judgment of the Arnhem – Leeuwarden Court of Appeal, it was confirmed once again that this tax assessment does not mean that the agreement also qualifies as an employment contract under civil law. On the basis of such an opinion of the Tax and Customs Administration, the “worker” cannot simply claim employee rights (such as protection against dismissal and compensation, continued payment of wages in the event of illness, holidays, pension, etc.). This requires a ruling from the civil court; however, the civil court will take the opinion of the Tax and Customs Administration into account as a circumstance in the assessment.
If you make use of (a) model agreement(s) “free replacement”, it is therefore important to reassess whether there is an employment contract or not. If the legal relationship so permits, the use of the model agreement “no employer’s authority” is preferable.
For further information, please contact:
Ron Andriessen, Partner
Labré advocaten, Amsterdam
e: ln.erbal@nesseirdna.nor
t: +31 20 3052030
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