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Publication ⸱ 10-10-2023

Thinking along with the future of work: Clarifying assessment of employment relationships and legal presumption law

New legislation in the making for self-employed workers

Last Friday, the internet consultation was launched for the long-awaited Bill on Clarifying Assessment of Employment Relationships and Legal Presumption. This bill aims to clarify the employment status of workers. In this article, we list the main principles of the bill so that you can make your voice heard on the internet consultation in a thorough manner.

Directly to the internet consultation

The bill includes that not only indications pointing to the existence of a relationship of authority or subordination have weight in assessing an employment relationship. The law now also gives full place and weight to the degree of entrepreneurship in a relevant employment relationship and, under circumstances, the characteristics of the working person. Case law already included these elements in the assessment.

The Clarification of Assessment of Employment Relations and Presumption of Law Act introduces three main elements to assess authority

In the Act, the ‘working in the service of’ standard (the authority criterion) from Section 7:610 of the Civil Code is further structured and fleshed out by three main elements:

  1. work-based steering (A),
  2. organisational embedding (B), and
  3. working at own account and risk (C)

In certain circumstances where the consideration of the three main elements is inconclusive, there is an additional element (C ) that can be included in the assessment.

Elements and indications of employer authority

The three main elements of authority are further coloured by an exhaustive list of indications for the existence of an employment contract, which will later be worked out separately in an order in council. The indications have already been explained in the explanatory memorandum and included below.

Work content management (element A)

  • The worker is authorised to give directions and instructions on how the worker should perform the work and the worker must also follow them;
  • The worker has the ability to monitor the work of the worker and is authorised to intervene on that basis.;

Organisational embedding (element B)

  • The work is carried out within the organisational framework of the employing organisation;
  • The work is part of the organisation’s core business;
  • The work is structural in nature within the organisation;
  • Work is done side-by-side with employees doing similar work.

Own account and risk (element C)

  • The financial risks and results of operations lie with the working;
  • When carrying out the work, the worker is responsible for tools, aids and materials himself;
  • The worker is in possession of a specific education, work experience, knowledge or skills, which is not structurally present in the employer’s organisation;
  • The working person acts independently while working;
  • There is a short duration of the assignment and/or a limited number of hours per week.

Behaviour of working in economics (additional element C )

  • The working has several clients per year;
  • The working spends time and/or money on gaining a reputation and finding new clients or customers;
  • Working has business investment of some size;
  • The worker behaves administratively as an independent entrepreneur: is registered with the Chamber of Commerce, is a VAT entrepreneur and/or is entitled to the tax benefits of entrepreneurship (such as entrepreneurial allowances).

Legal presumption of employment

Besides clarifying the legal framework for determining whether a worker is an employee or self-employed, an additional legal presumption will be introduced based on an hourly rate. At a rate below €32.24 excluding VAT (reference date 1 July 2023), an employment contract will be presumed. Thus, an employment contract does not automatically arise, but the worker can invoke the legal presumption of employment in case of a rate below this standard and more easily claim an employment contract (with his own employer and, if necessary, through the civil courts). This does involve a rebuttable legal presumption. This means that the employee can try to prove that there is no employment relationship and that he or she is indeed self-employed.

Scheduled date of entry into force of the Clarification of Employment Relationship Assessment and Legal Presumption Act

The intended date of entry into force of the proposed rules is 1 July 2025, subject to feasibility. No transitional law is foreseen. This means that the rules will take effect immediately upon entry into force. And thus, the rules will apply to any employment contract existing on 1 July 2025 and to employment contracts starting on or after that date.

About Lexence’s employment law team

Our team of employment law experts advises and represents national and international companies and non-profit organisations. We handle labour disputes, reorganisations and co-determination, in various sectors. We advise HR departments, in-house lawyers, works councils and directors on all aspects of employment law. The employment law team likes short lines of communication and likes to get to the point quickly. Find out more about the employment law team click here.

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