If you work with zzp'ers, you may run the risk that it turns out afterwards that there was an employment contract after all. The self-employed person can even claim this and claim back payment of wages, but a collective agreement party or a pension fund can also claim participation in their schemes. There is currently little to fear from the Tax Authorities because of the so-called enforcement moratorium. However, from 2025, the Tax Authority will start enforcing again and retroactively until 1 January 2025.

This moratorium means that the Tax Authority will issue directions if they believe there is an employment contract, but will only enforce it in exceptional cases of malice. Thus, the Inland Revenue does not immediately impose an adjustment obligation but the directions must be followed:

• You adjust the arrangements with the self-employed person such that there is no longer an employment contract, or
• You have the self-employed person's work processed as employment in the payroll tax return.

You usually get 3 months for this. Do you not follow the instructions or not sufficiently? Then a correction obligation and fine follow from the time the instruction was given.

New legislation consisting of the Labour relations clarification and legal presumption act. It is scheduled to come into force in 2026. However, the enforcement moratorium already ends on 1 January 2025. Already now, the Tax and Customs Administration checks again, but from 2025, the Tax and Customs Administration may also start levying post-clearance duties and fines in situations where there is an employment contract. In doing so, the Tax Authority will apply the assessment framework laid down by the Supreme Court in the case of Deliveroo.

According to the Supreme Court, whether an agreement should be considered an employment contract depends on all the circumstances of the case taken together. Of relevance may include:

• the nature and duration of the work;
• The way work and working hours are determined;
• embedding the work and the self-employed in your organisation and operations,
• whether or not there is an obligation to perform the work personally;
• how the contract was established;
• the way remuneration is determined and paid;
• the level of these rewards;
• and whether the sole trader is at commercial risk in doing so.

It may also matter whether the self-employed person behaves as an entrepreneur in economic life, e.g. in gaining a reputation, in acquisition, in terms of tax treatment, and considering the number of clients for whom he/she works or has worked and the duration for which he/she usually commits to a particular client.

Besides using the model agreements, it is also important that as many criteria as possible from the Deliveroo judgment point to the absence of an employment contract. When assessing the employment relationship, all criteria are weighed against each other. Do the scales tip towards the presence of an employment contract or do they tip towards an assignment contract?

So what elements point to the presence of a commission contract?

• working with short-term assignments with a clear definition of the assignment;
• Being able to schedule work and working hours independently;
• perform work that is not embedded in the organisation;
• the possibility of free substitution;
• high rewards and be able to influence them;
• using their own equipment and transport;
• be liable for any damages and repair of defects in its own time and at its own expense;
• not be given instructions on how to carry out the task but
• only agree on the end result;
• not joining staff parties, not being on the organisation's website, etc.

A House of Representatives motion called for more risk-oriented enforcement in 2025, focusing in particular on forced self-employment, underpayment and labour migrant constructions. In other situations, it was asked to take into account the human dimension and customisation. The motion was passed, but the cabinet will ultimately decide whether and to what extent they will follow the motion.

Will it result in a post-tax assessment? Then the Inland Revenue announced only in 2025 not impose a penalty, if you can prove that steps have been taken within the organisation to prevent false self-employment. However, a default fine can be imposed.

To avoid post-tax assessments and fines, it is important to take stock of labour relations within the company. What is important in this regard:

• Map arrangements with self-employed workers and all facts and circumstances
• Using the framework from the Deliveroo judgment, assess whether there is an employment contract.
• Find out whether the arrangements and working methods can be adjusted so that there is no longer an employment contract. This could involve model agreements.
• If you cannot manage to reshape the arrangements and working method, consider whether you want to employ the self-employed person.