The Netherlands

1. Impact of Covid-19 in the workplace

It is expected that after Covid-19 working from home (at least part of the time) will become the new “normal”. In the meantime, employers will (continue to) focus on taking necessary measures to protect employees. For now, this will involve encouraging everyone to work from home (if possible). Are employees provided with hardware or are changes in respect of allowances contemplated? This will have an impact from an employment perspective and can have an impact from a tax perspective.

Employers should also take health and safety measures. Is your Risk evaluation (RI&E) up to date and does it take into account risks involved with working from home? Are there measures taken to focus on employees’ wellbeing while working remotely? What about checking your employees’ health when they come to the office? Employers should ensure that measures taken are in line with the applicable privacy and employment legislation. Mandatory testing and/or asking whether employees have Covid-19 symptoms is in principle not possible.

Possibly, Covid-19 also leads to organisational changes and redundancies. Dutch law provides very strict rules in relation to termination, also when it concerns redundancies, that should be taken into account when going through organisational changes.

2. Tax and employment relationship

If parties enter into a management or service agreement, they intend to have their relationship qualify as such from both an employment and a tax perspective. It is, however, possible, that from both perspectives the relationship is qualified as an employment relationship.

From an employment perspective, this is only possible if the service provider claims to be an employee and starts proceedings. Recently the Dutch Supreme Court ruled that all circumstances of the matter will be relevant in this respect and while parties’ intention when entering into the agreement was one of these circumstances, the Dutch Supreme Court has – in short - held that this is not the case. This means that it is possible that a relationship qualifies as an employment relationship even if parties intended differently.

From a tax perspective, it is possible that the tax authorities deem the relationship to be an employment relationship resulting in taxes and social premiums being due. Whether this is the case, depends on all circumstances of the matter. Whilst previously the Declaration of Independent Contractor Status (VAR-verklaring) would provide clarity on whether the relationship was actually a service relationship, this Declaration has been abolished several years ago. A system of model agreements was introduced with the Assessment of Employment Relationships (Deregulation) Act (Wet DBA) in 2016, making both parties responsible for qualifying the agreement correctly. This Act has not given the clarity it was expected to give and it is, therefore, the intention to replace this Act with a different system. However, the current government has decided to not make any changes prior to the election of a new government. It has furthermore been announced that enforcement of the Act will be delayed until at least October 2021.

In the meantime, a web module will be introduced to help parties answer questions to see (based on a point system) whether their relationship qualifies as an employment relationship. It is the government’s intention to start a pilot with the web module as soon as 11 January 2021 (although it has been delayed several times) for a period of six (6) months. During the pilot phase, the outcome of the module will not be legally binding and is only for informative purposes.