Are some independent contractors more equal than others?

On 21 February 2025, the Supreme Court ruled on an important legal question in the context of assessing whether a worker is seen as a contractor or an employee. The Supreme Court ruled that the ‘entrepreneurship’ of a worker, for example whether the worker also has other clients, must be included as a full element in the assessment of whether someone has an employment contract. The consequence of this is that for the same work, one worker could be employed and the other could have a contract for services.

This decision is relevant, as it further defines the assessment framework for self-employed persons (both from a tax- as from an employment law perspective). These questions arose in an appeal with the Court of Appeal between Uber, a group of drivers and the FNV trade union. The FNV demanded compliance with the Taxi Transport Collective Labour Agreement (CAO Taxivervoer) for employees, while Uber argued that its drivers are independent entrepreneurs and as such the Collective Labour Agreement need not be applied. The Court of Appeal submitted prejudicial questions to the Supreme Court in this regard.

In the Deliveroo judgment (Supreme Court Deliveroo Judgement), the Supreme Court previously established a number of criteria that are important in assessing whether there is an employment contract. One of the criteria is entrepreneurship, but the exact interpretation of this was still unclear according to the Court of Appeal. The Court of Appeal found it remarkable that the same work can be performed by one person as an employee and by another as a contractor, depending on the person’s entrepreneurial characteristics. In addition, the Court of Appeal asked the Supreme Court whether this assessment should only look at ‘internal entrepreneurship’, which takes place within the working relationship, or whether ‘external entrepreneurship’, such as factors outside the working relationship, may also be taken into account. Internal entrepreneurship concerns matters such as bearing financial risk for the work performed and independently determining working hours. External entrepreneurship includes elements such as registration with the Chamber of Commerce, acquisition, investments and having multiple clients.

In its decision of 21 February 2025, the Supreme Court confirmed that entrepreneurship may play a role in the qualification of an employment relationship. The criterion ‘entrepreneurship’ relates to the general (entrepreneurial) situation of the worker and can also include factors outside the direct relationship with the client (external entrepreneurship). Not only the factors within the work situation itself, but also any broader entrepreneurial characteristics outside the work situation are important in the qualification of an employment relationship. This implies that for the same work, one worker may be an employee while the other worker is a contractor. This means that clients and contractors must carefully consider in advance which internal and external entrepreneurial elements are present, in order to be able to assess the nature of the working relationship.

For questions about the consequences of this for your workforce, please contact Cara Pronk, Steven Sterk, Daniëlle Westerhoff, Barbara van der Veen and Cézanne Alsemgeest.