The Supreme Court rules that the intention of the parties is no longer decisive in assessing the employment relationship


The Supreme Court has answered the question what decides an employment relationship. The crux is whether the rights and obligations agreed between the parties meet the legal definition of the employment contract. The parties’ intention is no longer relevant.

With this ruling the Supreme Court has decided that the Court of Appeal’s point of view was incorrect. Decisive is only whether the rights and obligations meet the legal definition of the employment contract. In its ruling the Supreme Court followed the Advocate General’s recommendation. Sadly, the Supreme Court has not acted on the Advocate General’s suggestion to replace the current authority criteria in assessing whether or not there is an employment relationship.

The Advocate General has advocated – like the Borstlap Committee – the use of the ‘embedding in the organisations’ as a guiding principle, a recommendation that could have drastic consequences for independent contractors without employees as well as clients.
The issue has not been clarified, and it appears it is left to the politicians to resolve this matter.

Watch our clip about Self-employed or (fictitious) employment – on YellowstoneTV – Episode 2 and see the message of 19 August 2020 … Advocate-General advises: ‘Parties’ intentions may no longer play a part in assessing self-employment’