In Belgium, the number of self-employed people has been steadily increasing for many years, reaching nearly 1,300,000 people as of 31 December 2024, according to INASTI. But working with them is not without risk: investigations into ‘false self-employment’ doubled between 2023 and 2024.
But what exactly is a ‘false self-employed person’? What risks does a company face when working with self-employed workers, and how can these risks be avoided?
Self-employed vs. Employee
The difference between these two statuses is the relationship of subordination. Employees perform services under the legal authority of their employer, who has the right to give them orders regarding the organisation and execution of the agreed work.
Self-employed workers, on the other hand, perform their services without being under the authority of their co-contractor, who therefore cannot, in principle, give them orders.
The risk: reclassification of the relationship as an employment contract
According to the law, the parties are free to choose the status under which they wish to work (employee or self-employed).
However, the judge has the power to reclassify a self-employed working relationship as an employed working relationship if they find that a relationship of subordination exists.
In the event of reclassification as an employment contract, the consequences for the employer can be particularly severe: retroactive payment of increased social security contributions to the NSSO, retroactive payment of withholding tax to the tax authorities, possible dispute of certain VAT deductions, payment to the worker of compensation in lieu of notice calculated in accordance with labour law, etc.
Caution is therefore advised.
How to avoid false self-employment?
In practical terms, before reclassifying a self-employed relationship as an employment contract, the judge will consider the following criteria to assess whether or not a relationship of subordination exists:
- The intention of the parties as expressed in the agreement;
- Freedom to organise working time;
- Freedom to organise the work itself;
- The possibility of hierarchical control.
As indicated, the judge will first examine any written agreement between the parties to see whether it contains any indications of subordination or, on the contrary, clearly stipulates the independent nature of the collaboration.
The judge will then also examine whether, in fact, the self-employed person really had the possibility of freely organising their working time and their work itself, and whether the company exercised hierarchical control over the worker.
In this regard, we have provided below a non-exhaustive table of some good and bad practices to avoid the risk of reclassifying a self-employed relationship as an employed relationship.
These practices must be reflected both in the written collaboration agreement concluded with the self-employed worker and in practice:
By Antoine CASTADOT, Associate lawyer, Yelaw and Guillaume BOREUX, lawyer, Yelaw
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