Let's face it: many self-employed people still find the legal frameworks for enforcement against false self-employment too unclear. "Nonsense," says Niels van der Neut, associate professor of labor law at the University of Amsterdam. "There is already a lot of legal handholding." In conversation with Oifik Youssefi, Public Affairs Officer at HeadFirst Group, Van der Neut shares his thoughts on the expiration of the enforcement moratorium, the misinformation about it online and on the role of social partners in unlocking the tightness in the labor market.

Niels, as an academic in labor law, how have you experienced this year in terms of the zzp file?

Chaotic. There is a lot of shouting about self-employed workers and the expiration of the enforcement moratorium, especially on social media like LinkedIn. Many people are voicing their opinions, often from an incomplete understanding of the situation. The remarkable thing about this chaos is that those opinions can by no means always be separated from commercial interests. A lot of money is made from services that check the compliance of clients and freelancers, offering a form of false security. Sometimes I see invitations to seminars or workshops come along about the qualification question (employee or self-employed?) that contain legal errors, which is embarrassing. At the same time, I also see public campaigns by the Ministry of Social Affairs and Employment and the Tax Administration to make the rules around zzp hiring clear. But even that apparently does not lead to the desired clarity. So are these campaigns unclear or does the practice not find the answers desirable? My answer to that question can probably be guessed.

You've started speaking out more and more on this subject. Why really?

The amount of misinformation frustrates me; I feel a responsibility to correct it. As an independent academic, I try to enrich the public debate with nuance and interpretation. Sure, this sometimes results in less than kind responses, given the sensitivity of this issue. Nevertheless, I feel it is important to continue to give my opinion, which is substantiated by scientific research.

Self-employed people complain about the lack of a clear legal framework and that that could affect enforcement from 2025, to what extent is that true?

The enforcement moratorium was once established with the promise of new legislation to make it clearer when a worker is an employee or self-employed. There will be no new law on Jan. 1, 2025, but the perception that there is no clear legislation at all now is simply not true. Much has changed between the promulgation of the enforcement moratorium and Jan. 1, 2025. In the Deliveroo judgment, the Supreme Court gave nine points of view in testing false self-employment (employee status). That offers quite a bit of guidance. The problem is that people often want one hundred percent clarity in advance, and that is simply difficult in a market that is so diverse. If you assume one hundred percent certainty, you take away the possibility of applying open standards that do justice to the actual situation of how parties work with each other ('substance goes before appearance'). And if you do want extra certainty, the Tax Office offers room for a pre-consultation; I know a number of people who got a response to the pre-consultation request within a few weeks. So the options are there. I sincerely wonder if the question, "is there clear regulation?" for many should not rather be "am I happy with the answer given to this?".

Still, people remain critical of the expiration of the enforcement moratorium because of market turmoil. However, the government and the Tax Administration indicate that the market is ready. How do you view this?

If the market is not ready for it, as far as I am concerned, that is mainly down to the market itself. The market has had a long time to prepare since the announcement in December 2022 that the moratorium would be lifted from January 1, 2025. Sure, sectors like education, healthcare and childcare are especially vulnerable given the staffing shortage; these sectors may find that reliance on self-employed workers has consequences. For some childcare sites, this may even mean temporary closure. But the flight to self-employment has been caused in part by poor employer practices. I call on employers, and actually social partners, to allow for certain desires of working people, such as some form of flexibility. This is what the Borstlap Commission already advocated: making permanent contracts less rigid and flexible contracts less precarious.

How do you listen to the Cabinet's ambition to come up with a clarification law like the Verduidelijking Beoordeling Arbeidsrelaties en Rechtsvermoeden (VBAR) Act, despite the legal clarity that you think is there?

Time has not stood still: the idea of the VBAR existed before the Supreme Court came out with the Deliveroo ruling. With this ruling, the Supreme Court took a clear line. Still, I can imagine quite well that people need such a clarification law , because it provides a framework and gives structure. Whether the VBAR fulfills that promise and is actually a clarification with respect to the Deliveroo viewpoints, I wonder. The Council of State itself has also ruled that the effectiveness of the VBAR in its current form will have little (positive) impact on the fight against false self-employment. Perhaps things will become a little more manageable, but perhaps we should not expect very big steps either. The practice wants certainty in advance, but that does not fit with how we in the Netherlands and Europe assess employment relationships: the actual situation takes precedence over the paper reality.

Finally, what was the highlight for you in the zzp file this year?

The announcement that the enforcement moratorium is really, really coming off as of Jan. 1, 2025. It has not been made easy for the Internal Revenue Service and SZW by continuing to extend the moratorium, but it seems we are taking a step in the right direction. The moratorium has lasted long enough.

And the low point?

The disinformation that is spread. This damages trust in the rules and in the executive agencies.

What in particular are you looking forward to in 2025?

I hope that we will have a more fundamental discussion about self-employed workers in, for example, partner structures and with specialists such as self-employed surgeons. Those legal (qualification) questions are much more interesting and complex than those about self-employed people in childcare or education. In addition, I would like to see the conversation start in society and in politics about a revision of the social security system and how employed and self-employed people contribute to it. And as an extension of my dissertation, it is still interesting that the focus might not only be on the differences in taxation and social security, but also be shifted to the civil law differences between employees and the self-employed. Of course, one might ask: shouldn't the conversation about these differences actually have been held much earlier, for example, when the enforcement moratorium was first announced?

*This interview is part of a series, in which in recent weeks the Public Affairs team has interviewed several experts closely involved in issues surrounding the self-employed and the labor market. The series consists of six interviews, which will be published in the coming weeks.

Request a free consultation

Questions about this? Please contact us.

Sem Overduin
Public Policy & Affairs Manager
Sem.Overduin@headfirst.nl

Oifik Youssefi
Public Affairs Officer
Oifik.Youssefi@headfirst.nl

Maaike van Driel
Head of Legal
Maaike.vanDriel@headfirst.group

Thomas ten Veldhuijs
Senior Legal Counsel
Thomas.tenVeldhuijs@headfirst.nl