Does a lack of professional knowledge exclude the possibility for a worker to have a self-employed status?

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Date:
05 Jan 2011

<p><span style="font-size: 10pt;"><span style="font-family: arial,helvetica,sans-serif;"><span style="font-size: 8pt;">The Employment Relations Act of 27 December 2006 establishes four criteria for assessing whether an employment relation is to be qualified as subordinate employment or independent self-employment. These criteria are:</span></span></span></p><span style="font-size: 10pt;"><span style="font-family: arial,helvetica,sans-serif;"><span style="font-size: 8pt;">

The Employment Relations Act of 27 December 2006 establishes four criteria for assessing whether an employment relation is to be qualified as subordinate employment or independent self-employment. These criteria are:

- the will of the parties as expressed in their agreement;
- the freedom in the organization of working time;
- the freedom in the organization of work;
- the opportunity to exercise hierarchical control.

In its judgment of 6 December 2010, the Supreme Court made for the very first time a comprehensive interpretation of the 'freedom in the organization of work' criterion.

The judgment concerned a contractual relationship with a self-employed plasterer. However, as the individual concerned had soldering training, he did not have adequate professional knowledge to plaster and accordingly, the contractual partner had to give him very precise guidelines on the work that was expected of him and the way it had to be done.

The Labour Court of Appeals of Antwerp decided that the existence of a subordinate relationship could be derived from the lack of freedom in the organization of work, but that this could not in itself lead to the exclusion of a self-employed status. The Labour Court of Appeals also stated that the monitoring undertaken by the contractual partner only concerned the quality of the work carried out.

The Supreme Court overruled the Labour Court of Appeals. It stated that the fact that the contractual partner gave precise guidelines and instructions because of the worker's lack of professional knowledge involved a greater level of supervision than the mere monitoring of the quality of the work carried out in a non-subordinated employment relationship. A lack of professional knowledge, combined with a lack of freedom in the organization of work (as the contractual partner needed instructions in order to carry out his work) is incompatible with a self-employed status.

This judgment suggests that particular care is required regarding a self-employed status in a situation where precise guidelines must be given to the worker and especially where he/she does not have adequate professional knowledge for the work involved.