The Uber judgment: explanation of criteria for the self-employed (Deliveroo) by the Supreme Court

The Supreme Court gave further clarification in February 2025 on the criteria by which it can be assessed whether there is self-employment or an employment contract (Hoge Raad 21 februari 2025, ECLI:NL:HR:2025:319 . After the Deliveroo judgment, in which 9 viewpoints were given, new questions arose, of which, in our view, the most interesting is:

Is the viewpoint of entrepreneurship more weighty than the other 8? Should one look at internal entrepreneurship, i.e. in the mutual relationship with the employer, or at external entrepreneurship, i.e. how the worker operates in economic transactions?

Back to the Deliveroo judgmentHoge Raad 24 maart 2023, ECLI:NL:HR:2023:443 : the Supreme Court has expressed the viewpoint of entrepreneurship as follows:

Also it may be relevant [ix] whether the person performing the work behaves or can behave as an entrepreneur in economic transactions, for example in acquiring a reputation, in acquiring clients, with regard to tax treatment, and having regard to the number of clients for whom he works or has worked and the period for which he usually commits himself to a particular client.

The Supreme Court sees no reason to impose a hierarchy among the considerations. There is legislation being developed that should provide more clarity on this.

Applying the viewpoint of “entrepreneurship” can lead to one driver for Uber having an employment contract, while another who behaves as an entrepreneur in economic dealings does not.

One can look both at the external circumstances (whether the driver behaves or can behave as an entrepreneur in economic transactions, for example in acquiring a reputation, in acquiring clients, with regard to tax treatment, and in view of the number of clients for whom he works or has worked and the length of time he typically commits himself to a particular client) but also at the internal relationship with the client, to what extent he bears a commercial risk and whether he shares in the profits.

With this prejudicial judgment the Supreme Court has provided clear guidance for all parties for whom this question now arises.