Employers’ liability for freelancers
The number of freelancers (zzp’ers in Dutch) has been raising over the past years. This not only offers chances for employers, but also more responsibilities. As employer you are responsible for the damage caused by the freelancer. Moreover, since 2012 it is possible for freelancers to hold the employer liable for damage which has been caused by the activities which were part of the assignment.
Liability for work accidents
Based on art. 7:658 paragraph 1 and 2 CC, an employer is liable for the damage of the employee during working activities, unless the employer can show that he fulfilled his duty of care or that the damage has been caused by intent or deliberate recklessness of the employee.
In the context of the Flexibility and Security Act this article was expanded with one provision. This fourth paragraph makes employers’ liability also applicable for situations in which the employer uses a person for his activities without an employment contract, like temporary staff or seconded workers. Also volunteers and interns fall within the scope of art. 7:658 paragraph 4 CC.
The Allspan case
The legal standing of freelancers, when involved in a work accident was unclear for a long time. The Supreme Court ended that ambiguity in 2012 by judging that freelancers can also put forward claims grounded on art. 7:658 CC.
The case dealt with a small freelancer who fabricated steel constructions and machines on the basis of assignments. He also made reparations to machines. During one of the reparation assignments he was involved in a severe accident at his employer and lost his lower right leg. The freelancer was not insured for work accidents and therefore held the employer, Allspan, liable for the damage. After seven years of legal proceedings the Supreme Court judged in favour of the freelancer. As summary, the freelancer had proven that his activities, the reparation of the machine, were part of the daily routine of the employer and could also be done by employees of the employer himself.
Criteria for a successful claim
The judgment contains criteria which have to be fulfilled before a freelancer can successfully ground a claim on art. 7:658 paragraph 4 CC:
- for his safety the freelancer is (partially) dependent on those who employ him; and
- the assignment of the freelancer is technically a part of the daily routine at that company.
Equal protection for freelancers
The heart of the first criterion is that freelancers enjoy, in principle, equal protection compared to employees of the employer. It depends on the circumstances of the case whether this criterion can be fulfilled, to which the following can be important: the factual relation between involved parties, the nature of the activities and the extent to which the employer influences the work environment, including the risks, of the freelancer, even through auxiliaries. When a freelancer performs the same tasks as the employees, the criterion can be fulfilled. However when the employer has less to say about the work environment and the safety risks, or when the freelancer is more an expert on that particular situation, that employer cannot be held easily liable.
Activities connected to practising the profession
The second criterion connects the activities to the daily routine of a certain profession or company. Legislative history shows that such activities are those which could also be done by regular employees. This is not limited to the core activities of a company. The criterion concerns the activities which are a part of daily routine.
What is important in this respect is whether the employer has the knowledge and competences present in his own company to perform the activities of the freelancer himself. When this can be answered with yes, employers´ liability is often applicable. When no, no liability exists.
An example: a painter who gets involved in an accident during the painting of the window frames of a law firm does not have an assignment which is linked to the daily routine of that law firm. He can therefore not claim liability on the grounds of art. 7:658 paragraph 4 CC.
Whether the employer is liable for a work accident of a freelancer therefore depends on the factual circumstances. From the Allspan judgment it can be derived that not every freelancer can claim successfully on the grounds of art. 7:658 paragraph 4 CC. When it is applicable though, the employer has to prove that he did not fall short in his duty of care concerning reasonable security measures to prevent damage to the freelancer.
For employers it is important to check if your insurance policy already covers freelancers. Furthermore it is wise to check the agreement with the freelancer again. In all such agreements there should be clauses on the insurance of the freelancer and also on the liability in case of accidents. When you would like assistance with this you are most welcome to contact us.