Publication date: 3 June 2020
Self-employed workers without personnel can sometimes invoke the ban on obstructions from the Placement of Personnel by Intermediaries Act (Waadi). In that case a non-competition clause or non-solicitation clause does not apply. This is the case, for instance, if the employer hires a former worker as a temporary employee.
The Waadi includes the ban on obstructions. This ban means that an employee may not be hindered from entering into employment with the hirer after the secondment. Therefore, a non-competition or non-solicitation clause in the employment contract between the employee and lending company is not valid.
In 2016, the Arnhem-Leeuwarden Appeal Court decided that the ban on obstructions shall not be applicable if the employee continues his activities with the former hirer as a freelancer. However, in a recent judgment, the Supreme Court pointed out that the ban on obstructions may still be applicable if the former employee starts working for the hirer on the basis of a contract of assignment.
This is because the ban on obstructions is based on the European Employment Agency Work Directive. According to the Supreme Court, the ban on obstructions therefore has to be interpreted in the same way as the Directive. The European Directive on Temporary Agency Work prohibits, in addition to obstructing the conclusion of an employment contract, “the establishment of an employment relationship” with the former hiring company.
An employment relationship exists if “for a certain period of time, a person performs services for and under the direction of another person, in return for which he receives remuneration.” This is a broader concept than an ‘employment contract’. According to the Supreme Court, the legal relationship between a freelancer and the company he was initially hired by can qualify as an employment relationship.
Thus a self-employed worker can invoke the ban on obstructions if he works under the direction of the former hiring company. However, the existence of a relationship of authority is precisely what a self-employed worker and a client usually want to avoid as it is not in keeping with the independence of a freelancer and the context of the Assessment of Employment Relationships (Deregulation) Act (Wet DBA). A relationship of authority can in fact be an indication of paid employment, with all the fiscal consequences. So the question is whether self-employed workers without personnel still want to invoke the ban on obstructions.
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