External entrepreneurship is fully taken into account when assessing pseudo self-employment
The Supreme Court has made an important ruling on the employment relationship between Uber and its drivers. This ruling has far-reaching consequences for self-employed people without employees and the question of whether they are truly self-employed or pseudo self-employed.
In the Deliveroo ruling, the Supreme Court mentioned 10 circumstances that are important in assessing whether an employment relationship is an employment contract or not. One of these criteria concerns the entrepreneurship of the worker. The question was whether this entrepreneurship also applies to the relationship outside of that with the client. In other words: do you also behave as an entrepreneur in ‘economic traffic’? The Supreme Court has now ruled that external entrepreneurship must also be considered as a circumstance in the assessment of false self-employment. So: external entrepreneurship is therefore a fully-fledged criterion.
How does this appear in practice?
- The worker has several clients per year;
- The worker spends time and/or money on acquiring a reputation and finding new customers or clients.
- The worker has business investments of some significance.
- 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 facilities).
In a bill (‘VBAR’), external entrepreneurship (C+) only played a role if it could not be determined on the basis of the other assessment criteria whether there was an employment contract or a contract for services. Now the Supreme Court deviates from this.
In addition, the ruling means that when the activities of the self-employed person are embedded (the same as those of employees), this does not necessarily mean that there is likely to be disguised employment. After all, if the self-employed person can demonstrate his external entrepreneurship, he is also there.
Fortunately, this means that it is easier for the self-employed person to prove that he is truly self-employed. Client happy, contractor happy because he does not want to be an employee.
Information?
Would you like to know more or do you have questions about this subject? Then please contact Richard Ouwerling, Employment Lawyer at LVH Advocaten.
