Drinking Coffee as Viewpoint for Qualifying Working Relationship?

On 1 January 2025, the enforcement suspension was lifted and the Dutch Tax Administration is now enforcing the law on false self-employment. This sparks attention for case law on the qualification of working relationships. In this article we will discuss a recent ruling in which the Subdistrict Court held that the working relationship between the parties did not qualify as a contract for services, but as an employment contract. One of the arguments of the Subdistrict Court judge was that the worker was embedded within the organisation because (among other things) he drank coffee with colleagues daily.

Since 1 September 2010, a worker has been working for a company that supplies natural, ceramic, and composite kitchen worktops and other worktops. He initially worked two days a week, but at the company's request this was extended to four days a week. Other relevant circumstances were that the worker had his own workplace in the factory hall of the company, used tools of the company, wore company clothing, and drank coffee together with the other colleagues. The worker had been registered as a sole proprietorship with the Chamber of Commerce since the start of the work, but had been working exclusively for the company since several years. He received the contracts for performing the work from the company, rather than directly from third parties.

On 13 June 2024, an incident occurred between the worker and a colleague. The ruling does not mention what the incident was about, but it prompted several talks between the worker, the colleague in question, and an HR officer. On 18 June 2024, a talk was held in which the worker stated his intention to report the incident to the police. This led to an escalation, after which the worker went home and did not resume work. He did not show up either at a scheduled follow-up meeting on 3 July 2024. The worker claimed that there was an employment contract and that on 18 June 2024 he was summarily dismissed, but that this dismissal was legally invalid. The company disputed that it had entered into an employment contract with the person concerned and argued that the contract qualifies as a contract for services. In any case, the company had not terminated the contract.

The Subdistrict Court judge held that, based on the viewpoints from the Deliveroo judgment, the working relationship must be designated as an employment contract:

• The worker had been working for the company for a long time – since 2010 – and his working days were extended from two to four days at the company’s request;
• The worker’s duties are an important element of the company’s business activities;
• The worker has his own workplace in the factory hall of the company and is bound by the opening hours of the factory hall;
• The machines and tools of the company are used to do the work, and during the work the worker wears company clothing;
• Although this was a theoretical option, there is no evidence of a situation in which the worker has had (or could have had) another person substitute for him;
• The work ensues from orders the company receives from third parties. The worker does not personally receive orders from third parties;
• The worker takes part in the usual social activities, such as the daily coffee drinking before starting the work. Because of this, not only the work, but the worker himself too is embedded within the organisation.

In the opinion of the Subdistrict Court judge, this is not altered by the fact that the worker allegedly worked at a defined place apart from employees, and there was allegedly no obligation to wear company clothing. The registration with the Chamber of Commerce was also not considered decisive to the Court’s review of the working relationship. An employment contract does therefore exist. However, the Subdistrict Court cannot assess yet whether a summary dismissal was given; the decision on this point has been deferred. 

Given the facts and circumstances, the judgment of the Subdistrict Court is easy to understand. The Subdistrict Court went through the viewpoints from the Deliveroo judgment in a structured way and confirmed, among other things, that a theoretical option of substitution and a Chamber of Commerce registration are not decisive factors for a contract for services. The main point why the working relationship was qualified as an employment relationship in this matter is that both the work and the person are embedded within the organisation. It was relevant to the conclusion that the person is embedded within the organisation that he took part in the usual social activities, such as drinking coffee together. Though it would go a little far to schedule separate coffee moments for employees and self-employed persons, it is important for clients to be aware that such circumstances may play a role in qualification. We will be happy to advise you on this.