Court: Locum Medical Specialist is False Self-Employed Person

• A court has ruled that a locum medical specialist should in fact be regarded as an employee, despite his self-employed status, because of the nature of the work and the embedding in the organisation.
• The termination of the agreement by the hospital was set aside, since it was not legally valid in the absence of an urgent reason, as the termination of an employment agreement requires.
• This ruling underlines the risk that self-employed persons in health care, who work together with employees, will be regarded as employees, especially in light of new legislation and the lifting of the enforcement suspension as of 2025.

False self-employment in the health care sector is a hot topic. The Dutch Tax Administration will lift the enforcement suspension on 1 January 2025. Moreover, new legislation that is meant to help counter false self-employment is on the way. A recent ruling by the Subdistrict Court of Middelburg shows that even under the current rules, a self-employed person in health care already runs a big risk of being perceived as an actual employee.

The person concerned had been working as a (locum) intensivist at the intensive care unit of a hospital since May 2020. He worked under a contract for services; as a self-employed person, that is. Initially he worked for a fixed period, but in the summer of 2021, an agreement for an indefinite period was concluded. The person concerned was available during locum periods for a minimum of 6.75 hours per week on average. 

In the course of 2023, a conflict developed between the person concerned and the hospital about the number of shifts for which the person concerned was timetabled. A few shifts had become vacant due to the departure of two intensivists. The person concerned claimed to be allowed to work at least part of these shifts. However, the hospital refused to assign these shifts to him on a structural basis. The ensuing conflict escalated to the point that in February 2024, the hospital terminated the contract for services with immediate effect.

The person concerned requested the Court to issue a declaratory judgment stating that he is working under an employment agreement, and to set aside the termination of this agreement. Besides, he requested that the hospital be ordered to allow him to work six regular monthly shifts at a fixed amount per month. 

The Court believed that there is in fact an employment agreement. The Court tested this against the points of view from the Deliveroo judgment. It attached weight to the following circumstances, among others:

• The person concerned was doing the same work as the other intensivists at the hospital, who are in paid employment;
• The agreement was for an indefinite period of time;
• The person concerned had to comply with the hospital’s duty roster and with its covenants, policy plans, regulations and protocols;
• The hospital determined the place and time of the work and provided rules for the performance of the work. This is not altered by the fact that the person concerned, as a medical specialist, could decide personally how he did his work, as this is inherent to the nature of the work of a medical specialist.
• The work as an intensivist can be designated as a primary task of the hospital: providing care to patients;
• Besides, the person concerned was embedded in the hospital’s organisation and business operations. He was doing the work inside the hospital, using the resources made available for this by the hospital, and according to the existing duty roster. In addition thereto, he was a member of the IC department and the medical staff.

Since there is an employment agreement, its termination is not legally valid. Termination with immediate effect requires that there is an urgent reason, which was absent. The Court therefore set aside the termination.

The Court declared that an employment agreement for an indefinite period is in place between the parties. Pursuant to Section 7:610b DCC (the legal presumption on the extent of the work), the Court established the extent of the work on the basis of the average number of hours worked in the past three months. This corresponds to the six shifts per month that the person concerned had asked for. For these shifts, the person concerned is entitled to wages according to the fee per shift agreed by the parties.

At present, the Deliveroo criteria are used to test whether a person must be designated as a self-employed person or as an employee. As a result, a significant risk exists already now that a care provider, who is deployed on a self-employed basis but side by side with regular employees to care for patients, must be perceived as an employee, even if they are deployed in a locum capacity. Especially after the lifting of the enforcement suspension, this may have major consequences. A careful identification of these risks and of possible solutions is in order. We will be happy to advise you on this.