Your lawyerJan Dop, LL.M.
Jan Dop assists national and international enterprises in all facets of their day-to-day business operations. He specializes in personnel, real estate and issues involving public authorities. Jan is Head of our Embassy Desk, that serves Embassies, Consulates, diplomats and expats. He has been a lawyer at Russell since 1995, and became a partner in 2011.
t: +31 20 301 55 55
Personnel: contractor or employee?
A commissioning party and a contractor conclude a contract for services. The contractor performs the services and is paid by the commissioning party. But what is the difference between a contract of services and an employment contract?
The difference between an employment contract and a contract for services is important for the following questions:
- Are the rules for employment law applicable? In case of an employment contract they are applicable and in the case of a contract for services they are not applicable. Thus, for example, an employer must continue to pay the wages of an employee who is unable to work, but the commissioning party has no obligations towards a sick contractor; and
- Do tax on wages and social security contributions have to be deducted from the remuneration paid for the work performed? This question is of importance as the employer does have to pay tax and contributions on wages but not on the remuneration paid to a contractor. In the case of an employment contract, the employer may have to pay additional tax on wages and social security contributions over the remuneration he has paid to the contractor.
Qualification of the contract
Just by putting the heading ‘contract for services’ on top of the contract, you have not excluded that you can be qualified as an employer. According to a recent decision of the Supreme Court of the Netherlands the qualification of a contract does not have to be based on the intentions of the parties when the contract was concluded, but on the content of the arrangements made – what rights and obligations were agreed – and the way in which they implemented this contract: its actual performance.
How can you make a difference?
What is important in the actual performance? What do you have to pay attention to, and when will the contract be qualified as an employment contract?
If three conditions are met, the contract will be regarded as an employment contract. These conditions are as follows:
- There must be work that is carried out personally by the employee (the employee may not simply put somebody else in his place);
- This work is carried for remuneration;
- There must be a relationship of authority between the employer and employee. A relationship of authority is deemed to exist if, among other things, an employee is required to comply with the instructions of his employer and to act in accordance with certain regulations.
Therefore, make sure that the nature of the contract is clear not only at the time of the conclusion of the contract but also throughout its term. This way you avoid misunderstandings with your contracting party.
Would you like to learn more about employment relationships or do you need help qualifying them? Please contact Russell Advocaten. We are also happy to help you with all other questions regarding employment law.
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