The salary in case of reclassification (from a service agreement to an employment agreement)

Misclassification of a self-employed worker (“false self-employment”) remains a hot topic in our practice. Over the past year, it has received considerable attention. The Dutch Tax Authorities’ enforcement moratorium has ended, many companies have re-evaluated their relationships with self-employed workers, and there have been a number of court cases, some resulting in reclassification, others not. Recently, the Amsterdam Court of Appeal issued a judgment providing further clarity on how the salary should be determined in such cases.

Facts

An employee had worked as a lunch staff member on location for a client of the employer since 2015. On 19 February 2018, the employer indicated that the employee’s employment contract would not be renewed, and it therefore terminated by operation of law on 1 April 2018. However, from 1 April 2018, the employee continued to work at the same client for the same (former) employer, now as a freelancer at a rate of €20 per hour (exclusive of VAT). On 12 October 2023, the (former) employer informed the employee that the client had terminated its contract with the employer and that her engagement would therefore end on 1 November 2023. The employee filed a claim with the subdistrict court (kantonrechter), requesting a declaration that, from 1 April 2018, her relationship with the (former) employer was an employment contract and claiming a transition payment. The court granted this request. The (former) employer appealed, but only with respect to the hourly wage used to calculate the transition payment and the legal costs.

Positions of the parties

The (former) employer argued that the transition payment should be based on the collective labour agreement (CLA) hourly wage of €12.59 plus 8% holiday allowance (€13.60 including holiday allowance). According to the employer, the “customary wage” is the salary agreed under the CLA prior to 1 April 2018, when a formal employment contract had been intentionally entered into.

The employee argued that the hourly wage should be €20 per hour, excluding holiday allowance and days.

Court of Appeal’s rules on the “reasonable wage”

The Court found that the €20 hourly rate applied to the self-employed worker situation and did not reflect the wage that would have applied if an employment contract had existed. This is evident from the circumstances before 1 April 2018. Furthermore, a higher rate was agreed to compensate for the lack of employment benefits (such as holiday entitlement).

Under Dutch law, a “customary wage” must be applied, and if this cannot be determined, a “reasonable wage” must be used (Article 7:618 BW). The CLA wage did not provide a suitable benchmark, as a higher salary had already been agreed when the employment contract was concluded. Therefore, the “customary wage” could not be determined. In determining the “reasonable wage,” the Court referred to the previously agreed salary and subsequent CLA wage increases. This resulted in an hourly wage of €14.58 gross plus holiday allowance, leading to a transition payment of €4,094.06 gross.

Practical Tips

Reclassification can have significant consequences for an employer and may involve multiple claims. The risk regarding the determination of the salary can, however, be mitigated by clearly specifying the terms in the contract with the freelancer. Also other risks can be limited contractually.

For more information on this topic, please contact us. We are happy to think along.

Court of Appeal Amsterdam, September 9, 2025, ECLI:NL:GHAMS:2025:2339