When we talk about risks concerning ZZP-ers, we often look at payroll taxes and contribution obligations. But there are more situations in which a ZZP-er may at some point unexpectedly take the position that an employment relationship exists.
Accident
Similarly, in a case in which the Zeeland-West Brabant District Court recently ruled. That case concerned a driver who twice ended up in a Belgian ditch with his client's truck. Since he worked as a self-employed worker, his client charged the driver for the costs involved in these incidents (and deducted them from the compensation owed to the driver). These are the costs of hoisting and transporting the vehicle out of the ditch, replacing the wing mirrors, repairing damage to the outside of the vehicle and replacing the clutch.
Employee
The driver appeal Article 661 of Book 7 of the Civil Code. Under this provision, employees can only be held liable by the employer for costs and damages they cause in the performance of their employment if there is intent or deliberate recklessness. The employer defended itself by arguing that the driver was performing the work as a ZZP-er and therefore cannot invoke provisions applicable to employees.
The subdistrict court decides in favour of the client. The agreements made between the parties must be inferred by the subdistrict court from what the parties present at the hearing. After all, there is no written agreement.
Elements relevant to the subdistrict court:
- the driver only worked for the client for 3 weeks;
- the driver receives remuneration of €25 per hour, where the client's employees receive €16 per hour;
- the driver sent invoices to the client from his sole proprietorship registered with the Chamber of Commerce and charged VAT on these invoices;
- the driver asked a third party to train him, which does not indicate an authority relationship with the client;
- the subdistrict court infers from the facts presented that the driver was allowed to substitute himself and did so in practice.
Damage
As a ZZP-er, the driver therefore bears the costs and damages caused by him while performing the assignments. Of the replaced clutch, the client could not sufficiently demonstrate that those costs were caused by the accidents caused by the ZZP-er. Also with regard to the damage to the exterior of the truck, the client did not sufficiently prove that it was caused by the ZZP driver (the circumstance that the damage was not repaired is not relevant, according to the Court).