Employee or self-employed?

Uncertain about the social status of a colleague: self-employed or employee? The distinction is often unclear. In any case, a good contract is an absolute necessity. Moreover, you can file a ruling request with the Administrative Commission for the regulation of the employment. By written procedure the Employment Relations Committee decides whether someone is an employee or a self-employed person. In this way you can avoid the risk of bogus self-employment.

A courier is an employee

A courier from Deliveroo disagreed with his status as a self-employed and appealed to the Employment Relations Committee. The Committee decided that a Deliveroo courier is not a self-employed but an employee. Consequently, social security contributions are due and labour law must be observed.

What can you do?

Step 1 – Be realistic

Maybe a professional collaboration with a self-employed person is financially more attractive than hiring an employee? Does a future colleague prefer to work as self-employed person and not as an employee? You let him or her choose?

There are many reasons for preferring one social status to another. Always let your decision be guided by the reality of the workplace.

Can the colleague himself decide when the work will be done? Does the colleague have complete freedom to organise his work? Are you authorized to exercise control?

A self-employed cooperation is only realistic if the person is not required to be present according to a working schedule or a timetable imposed by his client. You only give general guidelines that are necessary to achieve a predetermined result. You are not authorized to exercise hierarchical control.

If you are not prepared to grant this freedom or if the person is not willing to take on this responsibility, a self-employed collaboration is not appropriate.

Step 2 - Make for a good contract

The parties are free to choose the nature of their professional relationship: an employment contract or an self-employed cooperation. The actual execution of the contract must correspond to the agreed nature of the professional relationship. The contract drafting is therefore crucial.

A good contract does not rule out every risk. The contract must reflect reality. Bogus self-employment arises when the actual implementation of the contract is incompatible with the qualification given by the parties to the professional relationship in the contract.

Step 3 - Consider a social ruling

Working out who is an employee and who is self-employed is often contentious. Still in doubt? Then consider a social ruling by the Employment Relations Committee. The Employment Relations Committee assesses the employment relationship on a case-by-case basis.

Any party in a (prospective) professional relationship whose status is unclear may appeal to the Employment Relations Committee. This can be done before the start of the professional relationship or within a period of one year after the start of the professional relationship.

The decisions of the committee are binding vis-à-vis the Belgian social security authorities. In addition, they are valid for a period of three years and the committee shall decide within three months. You will also avoid labour law implications of a re-classification, such as holiday pay, working hours, termination, ...

More information?

We are happy to help you. This can be done even before the start of a new collaboration. We help you to deploy the most appropriate contractual design. Have you hired freelancers? We help you proactively during an internal audit and provide support during an audit by the social inspection.

Mail to legalpartners@partena.be

Author: Yves Stox

01/06/2018