Qualifying the employment relationship: Deliveroo, Uber and the Employment Relationship Clarification Act

Developments surrounding the qualification of the employment relationship (as in the Uber ruling and the Deliveroo ruling) remain current. In the Deliveroo ruling, the Supreme Court gave a number of circumstances that may be important in assessing whether or not there is an employment contract. One of those criteria is the entrepreneurship of the worker. The court examines whether the worker has multiple employers/clients, presents himself outwardly as self-employed, and is treated as self-employed for tax purposes. If there is entrepreneurship, the judge is more likely to rule that the worker is self-employed rather than an employee. Following the Deliveroo ruling, courts have now also been asked to rule on the employment status of Uber drivers. In particular, there is uncertainty about the criterion of the worker's entrepreneurship. A literal reading of the Deliveroo ruling could result in that of two Uber drivers doing exactly the same job, one has an employment contract and the other does not.

Thus, the discussion on the assessment of labor relations is still in full swing. With the bill Wet verduidelijking beoordeling arbeidsrelaties, the government wants to bring this discussion to an end, by expanding the criteria for qualifying an (employment) agreement. Under current regulations, an employment contract exists when the following criteria are met:

• (Personal) labor;
• Wage; and
• Authority.

The 'relationship of authority' criterion is expanded in the bill. Only if it is unclear whether there is a relationship of authority, will the degree of entrepreneurship be considered. The bill also introduces a legal presumption based on an hourly rate. This legal presumption means that when a worker earns an hourly rate lower than €32.24, there is a presumption of an employment contract.

It is still unclear if and when the bill will take effect. Cabinet formation may also play a role in developments surrounding the bill. We will continue to monitor developments!