Employee misclassification in the Netherlands: the real test

Article 7:610(1) BW sets out four elements. An arbeidsovereenkomst exists where one party undertakes to perform work, in the service of the other, for pay, over a period of time: arbeid, loon, gedurende zekere tijd, in dienst van. All four have to be present. Where they are, the relationship is employment whatever the paperwork calls it.

The Hoge Raad set out the method in Deliveroo on 24 March 2023, ECLI:NL:HR:2023:443. A court first establishes what rights and obligations the parties actually agreed, reading the agreement by the Haviltex standard of interpretation, and only then asks whether those rights and obligations meet the statutory description of an arbeidsovereenkomst. The order is the point: the label on the front of the document is not the starting position.

Then comes the finding that catches foreign engagers. The parties’ intention as to whether employment law should apply to their agreement is irrelevant to the classification. A zzp’er who wanted to be self-employed, signed a services agreement saying so and invoiced every month can still be held to have been an employee throughout.

That last proposition comes from the judgment itself: the weight to be given to a contractual clause depends on the extent to which the clause has meaning for the person doing the work. It is why rewriting a contractor agreement, on its own, moves the assessment very little.

Article 7:610a BW does the arithmetic for the worker. Anyone who performs work for another for reward, for three consecutive months, either weekly or for at least 20 hours a month, is presumed to do that work under an arbeidsovereenkomst. Most ongoing contractor engagements clear that threshold in the first quarter.

The presumption is rebuttable, and that is the whole difficulty. It does not decide the case; it decides who has to prove it. The engager arrives at the kantonrechter having to show that a relationship which looks, on its face, like continuous paid work was something else, using evidence about how the work was organised rather than what the contract says about it.

Article 7:610b BW adds a second presumption, this one about volume. After three months, the agreed working time in any given month is presumed to equal the average of the preceding three months. So an argument about status often arrives with the argument about hours already settled against the engager, which matters when holiday, sick pay and notice are then calculated on that volume.

Neither presumption is a penalty and neither is new. They sit in the same Book 7 title as the rules on written form, proeftijd and the ketenregeling, which are covered in our guide to Dutch employment contracts.

Classification depends on all the circumstances of the case, viewed in conjunction. The Hoge Raad named nine viewpoints in Deliveroo, expressly as relevant factors among others, and there is no scoring system: five out of nine does not win anything. A court weighs them and reaches a single conclusion.

The first five look at the work. They are the nature and duration of the work; the way in which the work and the working hours are determined; the embedding of the work, and of the person doing it, in the organisation and business operations of the party the work is done for; whether or not there is an obligation to perform the work personally; and the way in which the contractual arrangement came about.

The remaining four look at the person. They are the way the remuneration is determined and paid; the level of that remuneration; whether the person doing the work runs commercial risk; and whether that person behaves, or is able to behave, as an entrepreneur in the market, having regard to reputation-building, acquisition, tax treatment, the number of clients and the usual length of engagement with any one of them.

Freedom cuts both ways. The Hoge Raad accepted that freedom to log on when you like, to refuse individual jobs and to send a substitute points away from an arbeidsovereenkomst, and held that it does not by itself exclude one where the other circumstances show work performed in the service of the engager. A contractor with a genuinely independent practice and several clients sits in a different position from one who works a fixed rota for a single company.

Embedding is the viewpoint foreign engagers underrate most often, because it is the one that has nothing to do with the paperwork. A person who appears on the internal org chart, attends the weekly team meeting, is given a company laptop and a company address, and whose work is planned by the same manager who plans everyone else’s, is embedded in the business whatever their invoices look like. Nothing about that is unusual in a well-run team, which is exactly why it goes unnoticed until someone else reads the relationship back.

The Belastingdienst enforcement moratorium on arbeidsrelaties ended on 1 January 2025. Its own guidance puts it plainly: since 1 January 2025 the handhavingsmoratorium no longer applies. Where the Belastingdienst concludes that a dienstbetrekking existed, it may issue a naheffingsaanslag loonheffingen to the engager as the potential withholding agent.

Reach-back is limited, and the limit is the single most useful number here. A correction may not go back further than 1 January 2025. The exception is kwaadwillendheid, or a case where the engager has ignored a specific aanwijzing, and in those cases the ordinary five-year recovery period applies instead.

On penalties the position moved a year later. No verzuimboetes or vergrijpboetes were imposed in 2025. Vergrijpboetes have been possible since 1 January 2026, and verzuimboetes are still not being imposed in 2026. A vergrijpboete is not automatic and it is not a fee for getting the analysis wrong; it requires the Belastingdienst to make out its case.

A naheffingsaanslag can cover loonbelasting, premie volksverzekeringen, premies werknemersverzekeringen and the werkgeversheffing Zvw for the period concerned, with interest. That is the tax limb, and it is set out on the Belastingdienst page on enforcement and arbeidsrelaties. Whether any of it lands on a particular engagement depends on the facts of that engagement.

Two things follow for planning. The first is that the exposure is an employer-side exposure: it is the party engaging the worker that stands to receive the assessment, because it is the party that would have been the withholding agent. The second is that an aanwijzing changes the arithmetic sharply, since ignoring one moves a case out of the 2025 reach-back limit and into the five-year period. A specific instruction from the Belastingdienst about a named relationship is not correspondence to file and forget.

Separately from anything the Belastingdienst does, the worker can go to the kantonrechter and argue that there was an arbeidsovereenkomst all along. That civil claim is independent of the tax position: it does not need a Belastingdienst finding to succeed, and a quiet tax file is not a defence to it.

If it succeeds, the consequences are the ordinary consequences of employment, applied retrospectively. Statutory holiday accrues at four times the weekly working hours. The 104-week sick pay duty under article 7:629 BW applies, and our guide to Dutch sick pay sets out what that costs. Notice periods apply. A transitievergoeding may be owed, and it runs from the first day of the employment with no qualifying period, which is covered in our guide to terminating employment in the Netherlands.

There is a structural point underneath that list. A re-characterised engagement is expensive because Dutch entitlements are back-dated to the start of the relationship rather than to the finding, and because successive fixed-term arrangements can convert under the ketenregeling once the chain is examined. The longer an engagement has run on the wrong footing, the more of it there is to unwind.

Two further points on the law as it stands in 2026. A bill on assessing working relationships is before parliament and its scope has been narrowed; it is not in force, and nothing in it changes the article 7:610 test today. And the Hoge Raad expressly declined to develop the law further in Deliveroo, leaving embedding and any remuneration-based presumption to the legislature.

The direct answer is to stop asking the question. Where the work is going to look like employment, the way to take article 7:610 off the table is to have the person employed on an arbeidsovereenkomst by an employer that runs Dutch payroll for them, so that holiday, sick pay, notice and loonheffingen are handled as employment from the start rather than argued about afterwards.

Using an Employer of Record Netherlands service is one way to do that without setting up a Dutch company of your own. The EOR becomes the legal employer of the person you hire: the arbeidsovereenkomst is between the worker and the employing company, which runs payroll in euro, withholds and files loonheffingen monthly, and carries the statutory employer duties. You pick the person, agree the pay and direct the work.

Be clear about what that does not do. Employing someone from next month does not cure a period already worked as a zzp’er. That earlier period is judged on its own facts, within the reach-back described above, and a decision to convert an engagement is a decision about the future. Anyone with a long-running Dutch contractor population is looking at a legal question for Dutch counsel, not a copywriting question.

For live engagements, the useful exercise is to read them against the viewpoints rather than against the contract:

• Whether the person is embedded in your teams, tools, planning and internal communications
• Whether the work must be done personally, and what actually happens when they cannot do it
• How the rate was set, how it is invoiced, and how it compares with what employees in the same work are paid
• Whether the person carries commercial risk, and who bears the cost when work has to be redone
• How many other clients they have, and how long your own engagement has been running

None of that produces a verdict. It produces a shortlist of engagements where the answer is uncomfortable, which is where the Dutch legal advice is worth buying.

Where the answer is that the relationship should have been employment, the practical question becomes who employs the person from here. What to ask a provider before you hand that over is set out in our post on how to choose an EOR in the Netherlands.