Supreme Court nuances Green/Schoevers ruling: Party's intent not an independent element

On Nov. 6, the Supreme Court issued a high-profile ruling dealing with the assessment of an employment relationship. Namely, the Supreme Court ruled that the party's intention is no longer relevant when qualifying an employment contract. In doing so, the Supreme Court seems to be partially backtracking on the yardstick that has applied up to now, which was derived from the Groen/Schoevers ruling in 1997. Is the November 6, 2020 ruling really "groundbreaking" or is it merely a storm in a teacup?

Supreme Court ruling

The case in question involved a benefit recipient who, through a participation program without pay, had worked twice for six months as a service desk employee with the municipality of Amsterdam. She wanted the same pay as her colleagues for the same work. According to the Supreme Court, lower courts were right to reject that demand, but partly on the wrong grounds. Namely, they had allowed for the fact that the parties did not intend to enter into an employment relationship. That does not matter, however, according to the Supreme Court. The fact that this service employee did not have quite the same range of duties as her colleagues anyway was reason enough not to qualify her as an employee.

The Supreme Court rules, contrary to what has often been inferred by legal practice from the Groen/Schoevers judgment, that the party's intention is not an additional element in the question of whether the contract must be regarded as an employment contract. With this ruling, the Supreme Court also leads us a little more in the direction of Union law. 

Terms of employment agreement

An employment contract exists if the following three (legal) requirements are met:
- whether a person personally undertakes to perform work for another;

- receives pay for it and;

- whether a relationship of authority exists with that other person.

A contract that meets the above elements is, in principle, an employment contract. For a long time it was thought that "the party's intention" was an independent (fourth) element. This does not appear to be the case. According to the Supreme Court, however, the party's intention must be included in the total (factual) package on the basis of which it must be assessed whether the aforementioned elements have been met.

Significance for clients and self-employed workers

Although this Supreme Court ruling was not about a self-employed person but about a benefit recipient, it is considered significant in the media for the qualification of an employment relationship with a self-employed person. In our opinion, not entirely justified.

The Supreme Court doesn't really tell us anything new in the November 6, 2020 ruling. Certainly not when it comes to the practical implementation of this ruling. Left or right, the existence or non-existence of a relationship of authority remains decisive in assessing whether there is an employment contract or contract for services.

Especially in those situations where the relationship of authority has nevertheless arisen over time without the parties having intended it at the time of entering into the agreement. Regardless of whether the parties intended this or not. It is therefore important to (continue to) act in accordance with the agreements made in the assignment contract.

In short

Party intent (still) plays a role in qualification, but should not be assessed as an independent element. However, this is not a change of course, but a confirmation of the Groen/Schoevers judgment. For practice, our advice to companies that make extensive use of zzp'ers remains: properly and clearly record all rights and obligations between parties, including the parties' intentions in doing so. But even more importantly: keep the agreements made as such. In that sense, nothing new under the sun.

Curious about the full ruling? Then click here.

Questions about this topic or about working with freelancers? Feel free to contact one of our specialists (by phone).