Update legislative proposal “More Certainty for Flexible workers”

In the case between the trade unions FNV and CNV and the Temper platform, the Court of Appeal ruled that workers carrying out work via the Temper platform qualify as agency workers. Temper therefore qualifies as a temporary employment agency. This marks another milestone in the series of court rulings on platform work and sends a clear signal to (temporary) employers who make use of platform workers. Temper is an online platform where workers and clients can connect and agree on the work to be carried out. Temper presents itself as a neutral intermediary: a digital marketplace where self-employed people (freelancers) can secure assignments from companies that need extra help on a temporary basis. FNV and CNV took the following position. In their opinion there is a temporary employment contract between Temper and the Temper workers as referred to in Article 7:690 of the Dutch Civil Code. The workers were not ‘genuine entrepreneurs’, but agency workers, with all the legal consequences that entails. What is the court’s ruling? Contrary to the ruling of the Amsterdam District Court, the Court of Appeal has concluded that a temporary employment contract exists between Temper and a worker, as a result of which Temper qualifies as a temporary employment agency. The Court of Appeal reaches this conclusion by applying the criteria set out in the Supreme Court’s Deliveroo judgment. In doing so, the Court of Appeal considers that Temper is closely involved in the establishment of the contractual triangular relationship between Temper, the worker and the client. Temper is also closely involved in how remuneration is determined, how it is paid out and the amount of the remuneration. Given this degree of involvement, Temper – according to the Court of Appeal – cannot be characterised as a mere intermediary platform. The Court of Appeal also ruled that the workers run no (substantial) commercial risk with regard to the question of whether the workers act as entrepreneurs in the course of economic activity. The Court of Appeal considers that there is no evidence to suggest that a significant number of workers have made ‘substantial investments’, given that the list of Temper’s top 25 clients shows that these roles involve work for which no investment is required. The number of workers who are not registered with the Chamber of Commerce, and the fact that entrepreneurship – which is aimed at making a profit – is incompatible with an average hourly rate of €20.78, mean that Temper’s defence does not hold up with regard to these Deliveroo criteria either. All in all, the working relationship is characterised predominantly by factors relating to employment agreement and not – or at least to a much lesser extent – by factors indicative of genuine entrepreneurship. What does this mean in practice? The Temper ruling is the latest in a series of platform rulings following those on Deliveroo and Uber, and once again demonstrates that the actual working situation is of decisive importance. This applies not only to the traditional employer-employee relationship, but also to triangular arrangements such as this one. For Temper and similar platforms, being classified as a temporary employment agency has far-reaching consequences under employment law. As a temporary employment agency, Temper must comply with the Waadi and the collective agreement for temporary workers, as well as ensure pension accrual via StiPP. Contact Do you have any questions about the classification of your employment relationships with platform workers or about the implications of the Temper ruling for your organisation? If so, please contact Lisa van Baarsel, Dunia Caillette or one of our other employment law specialists.

It has been a topic of considerable debate in employment law circles for quite some time: does an employee accrue holiday entitlement during a so-called dormant employment contract? Conflicting frameworks: Dutch law and European law Dutch law links the accrual of holiday entitlement to the payment of salary. The accrual of holiday days therefore stops when the 104-week waiting period during illness comes to an end. European law applies a different standard and links holiday entitlement to work, including periods of incapacity for work, and not the payment of salary. On the basis of the European legislation, sick employees would be entitled to full accrual of holiday days even after the 104 week waiting period. The fact that these different frameworks lead to uncertainty is evident from the conflicting rulings on the accrual of holiday days after the end of the waiting period. No accrual of holiday days after the end of the waiting period In the rulings in which the court rules that the employee does not accrue holiday days after the end of the waiting period, reference is made, among other things, to the recuperative function of holidays. After the expiry of the waiting period, the employee would no longer have any (reintegration) obligations, and as a result, holidays would lose its function of recovery and rest. In these rulings, courts also point to the fact that employees with a dormant employment contract receive social benefits (WIA or WW), under which they are entitled to holidays with continued payment of benefits. If the employee were also to accrue paid holiday days with the employer during the same period, that would amount to double entitlement. Accrual of holiday days after the end of the waiting period In an earlier blog, we highlighted the ruling of the District Court of Gelderland, in which the judge ruled that Dutch national law is incompatible with Article 31(2) of the Charter of Fundamental Rights of the European Union, which determines that every worker has the right to annual leave with pay. The court ruled that Article 7:634 of the Dutch Civil Code must therefore be excluded from application. The employer ended up being ordered to pay the holiday days accrued during the dormant employment contract. Preliminary question to the Supreme Court – awaiting an answer On 2 March 2026, the District Court of Rotterdam acknowledged the above-mentioned inconsistent case law and uncertainty. The court considered that proceedings will continue to yield inconsistent outcomes in the future without a definitive answer from the Supreme Court on the question of whether holiday days are accrued during a dormant employment contract. The court therefore intends to refer a preliminary question to the Supreme Court on this subject. Although it will take a little longer, employers can look forward to clarity on the accrual of holiday days after the end of the waiting period. Contact Do you have questions about leave and long-term illness, or would you like to exchange views? Please contact Annemiek Varkevisser, Rose Horstman or one of our other employment law specialists.

The long-term engagement of temporary agency workers is not unusual in many organisations. Temporary agency work is used to create flexibility and to absorb fluctuations in staffing levels. But how “temporary” is such work if the same agency worker has been working for the same hirer for many years? In a recent judgment, the Supreme Court made it clear that temporary agency work must genuinely be of a temporary nature.  Case: agency worker working for the same hirer for 13 years In a recent case before the Supreme Court an agency worker had worked almost continuously for nearly thirteen years at the same factory, first at Unilever and later at Upfield. He worked via various temporary employment agencies and successively performed the roles of production worker and dispatch worker. Formally, he was an agency worker. In practice, he performed the same structural work for many years for the same hirer. When Upfield closed the factory, permanent employees were able to invoke the Social Plan. This did not apply to agency workers. The agency worker argued that, due to the long duration of his assignment and the nature of his duties, he was entitled to the same protection as permanent employees. He relied on the Temporary Agency Work Directive (Uitzendrichtlijn) and the Dutch Allocation of Labour by Intermediaries Act (Waadi). In his view, there was no longer any question of temporary agency work with a temporary character, but of structural work. The subdistrict court and the court of appeal ruled in favour of Upfield. In their view, the need for a flexible staffing buffer justified the long-term use of temporary agency work. Upfield pointed to fluctuating workload, seasonal influences and the need to cover staffing gaps. Upfield had also taken other agency workers into permanent employment and had offered the agency worker concerned a one‑year contract. The court of appeal considered it relevant that Upfield therefore did not rely exclusively on temporary agency work. Supreme Court judgment: temporary agency work is by definition temporary The Supreme Court corrected the approach of the lower courts. According to the Supreme Court, temporary agency work must, by definition, be temporary. This follows from the Temporary Agency Work Directive. That Directive permits prolonged or successive engagement of an agency worker only if the temporary nature of the work is safeguarded and there is an objective justification. A general reliance on flexibility is not sufficient for this purpose. Precisely where an agency worker has been working for the same hirer for many years, almost without interruption, this is a strong indication that the work is structural in nature, according to the Supreme Court. The Supreme Court further held that long-term temporary agency work with the same hirer is an indication of possible abuse of successive agency contracts. In such a situation, the court must assess whether the agency structure is not being used to circumvent rules on the protection of employees, such as protection against dismissal, continued payment of wages and access to a permanent position with the hirer. According to the Supreme Court, the court of appeal applied the wrong test. The court of appeal accepted the need for a flexible staffing buffer too readily as an objective justification for thirteen years of temporary agency work. Nor does the fact that other agency workers were taken on as permanent employees and that the agency worker concerned was offered a one‑year contract alter this. In the Supreme Court’s view, the actual deployment of the same agency worker for thirteen years exceeds the boundary of what can still be regarded as temporary. The Supreme Court therefore quashed the judgment and referred the case to the Amsterdam Court of Appeal. Implications for practice: scrutinising temporary agency work The judgment marks a shift as regards the length of time for which an agency worker may be engaged by the same hirer. The key point is that temporary agency work must be temporary. Temporary agency work is intended to cover peaks, sickness, replacement or clearly defined projects, and not to fill structural positions for many years. Points of attention for employers that work with agency workers include the duration of the engagement and whether agency workers are deployed for a temporary project, a peak season or, for example, demonstrably fluctuating production. In addition, this judgment is also relevant in the context of Social Plans and collective labour agreement arrangements. Agency workers are still regularly excluded from such schemes. If temporary agency work in fact no longer has a temporary character, an agency worker may argue that he or she is entitled to protection comparable to that of a permanent employee of the hirer. Employers should be aware of this. Contact If you have any questions about the temporary nature of temporary agency work or would like to discuss this further, please contact Rose Horstman or one of our other Employment Law specialists

On 27 January, the Amsterdam Court of Appeal handed down a judgment in the long-running proceedings between trade union FNV and Uber concerning the legal classification of the working relationship between Uber and its drivers. At the heart of the dispute was whether Uber drivers should be classified as employees (in which case the Taxi CAO – the collective labour agreement for the taxi sector – would apply to them) or as self‑employed contractors. FNV argued that Uber drivers in practice operate in a relationship of authority and subordination vis‑à‑vis Uber and are therefore employees. Uber – supported by a number of drivers who participated in the proceedings – argued, by contrast, that the drivers operate as independent entrepreneurs. What happened before the Court of Appeal’s judgment? In first instance, the Amsterdam District Court ruled that Uber drivers are employees. Uber appealed that judgement. In an interlocutory judgment, the Court of Appeal applied the Deliveroo criteria developed by the Dutch Supreme Court, but encountered the question of how one of those criteria – entrepreneurship – should be applied. The Court of Appeal therefore referred a number of preliminary questions to the Supreme Court. The Supreme Court answered those questions on 21 February 2025 and ruled that, when determining the classification question, there is no hierarchy among the various Deliveroo criteria. The entrepreneurship criterion must therefore be taken fully into account when assessing whether an employment contract exists. This made clear that other criteria do not automatically carry greater weight. Following that decision, the proceedings before the Amsterdam Court of Appeal were resumed. What did the Court of Appeal decide? The Court of Appeal ruled that the Uber drivers in question display a strong degree of entrepreneurship and concluded that there was no employment contract. In doing so, the Court of Appeal attached particular weight to, among other things: the scale of the drivers’ investments, including purchasing and choosing their own car; the freedom to determine their own working hours; the freedom and strategy involved in accepting or declining rides; and bearing entrepreneurial risks, such as liability and incapacity for work. The Court of Appeal further noted that, while the drivers concerned do work many hours per week, they also use multiple platforms at the same time. Uber drivers are often logged into several apps simultaneously, which the Court of Appeal considered an indication of entrepreneurship. Finally, the Court of Appeal expressly observed that the assessment may turn out differently if  the specific circumstances of an individual driver warrant it. It is therefore entirely possible that certain Uber drivers would qualify as employees. The classification of working relationships is not “one-size-fits-all”. What does this mean in practice? Once again, this judgment confirms that classifying a working relationship is not a standard, tick‑the-box exercise. Whether there is an employment contract or genuine self‑employment depends on an overall assessment of all the circumstances of the case. The individual circumstances are decisive. There is no uniform classification for everyone, not even within a single platform or organisation. A tailored, case‑by‑case approach is, and remains, necessary. The new coalition parties say little of substance in their coalition agreement about policy on the self‑employed (zzp’ers). The focus appears limited to tackling bogus false self‑employment and continuing work on the Self‑Employed Act. Hopefully, the legislative process will be taken up promptly and that the new legislation will provide concrete guidance that can be used in practice.  If you have any questions about the classification of working relationships, or about the implications of this judgment for your organisation, please contact Lisa van Baarsel or one of our other employment law specialists.

Introduction More and more people are buying their groceries online, which has for some time raised interesting legal questions about the status, rights and obligations of those working for such companies. Sometimes it can also be unclear which (collective) terms and conditions of employment apply. Collective agreement for food companies applicable The Arnhem-Leeuwarden Court of Appeal recently had to assess whether the collective agreement for food companies, which had been declared generally binding in the past, had previously been applicable to parties such as Picnic, Flink and Getir until they were granted dispensation from that collective labour agreement. Said parties operate ‘virtual shops’, where consumers can order groceries, but cannot physically shop. The scope of application for the collective labour agreement for food companies had already been broadened in 2019, and moreover, the scope of the collective labour agreement already took into account ‘virtual establishments’ of shops since 2001. Regarding the scope of the collective labour agreement the court ruled that it is sufficient that a legal entity primarily operates a grocery store, either itself or in conjunction with another group company.  If one group company only delivers, but the group company operating the shop cannot do so without that delivery, the delivering group company also falls under the collective labour agreement. All objections by Picnic and the other litigants about implausibility of the consequences of the applicability of the collective labour agreement and the practical impossibility of compensating 35,000 employees are dismissed by the Court of Appeal. The court had no doubt that its interpretation of the collective labour agreement is correct and as intended. As a result of this conclusion, tens of thousands of (former) employees have to be compensated; a substantial and undoubtedly expensive task for the employers involved. Practical tips This case – once again – makes it clear that employers run the risk of being unintentionally obligated to apply a collective labour agreement. (International) employers wishing to enter the Dutch market would do well to identify, as far as possible, which collective labour agreements may be applicable and, in order to avoid large claims and complicated reparations, not to assume too lightly that a particular collective labour agreement does not have to be applied. Even if a group company only performs work that is “related to” work covered by the collective labour agreement, the employer may still be bound by the obligations of the collective labour agreement. Contact Do you have questions about a collective labour agreement applicable within your sector or would you like to exchange views? Please feel free to contact Gerard Zuidgeest, Jaap Harrijvan or one of our other employment law specialists.

Introduction The question if a self-employed person should qualify as an employee remains a hot topic. Qualification as an employee can have far-reaching consequences, such as the obligation to pay premiums and payroll taxes retroactively, as well as dismissal protection, continued salary payment during illness, vacation days and vacation allowance. Should pension premiums also be paid retroactively? Pension as a condition of employment The principle of the Pension Act is that an employer is not obligated to offer a pension to his employees. Nevertheless, an employer may involuntarily be bound to a pension plan, for example because a collective bargaining agreement requires it or because an industry pension fund is compulsory. Retrospective premium obligation? Employers operating in sectors in which employees are entitled to pensions under a collective bargaining agreement or a compulsory industry pension fund might face retrospective liability for past pension contributions if a self-employed person is deemed to be an employee. After all, for pension funds, the premium is due even if an employee was not yet registered. The North Holland District Court recently ruled on a case in which an employee was employed as an employee from 1 January 2022, having first worked as a self-employed person for the company from 1 January 2016. He had always done the same work as other employees, who had always accrued pension benefits. The employee in question had also accrued a pension since 1 January 2022. The employer had offered the pension scheme to its employees without obligation. Was the self-employed worker now entitled to pension accrual retroactively from 1 January 2016? The court ruled that there was no legal basis for the retroactive payment of pension benefits in this particular case.  Practical tips Although the consequence of a self-employed person being classified as an employee does not always result in pension premiums being due retroactively, employers would do well to take into account the risk of pension premiums being due when assessing the risks of hiring self-employed persons, and to make organisational, financial and/or contractual provisions for this if necessary. Contact Do you have questions about pension in case of self-employment or would you like to exchange views? Please feel free to contact Jaap Harrijvan or one of our other employment law specialists.