Your position as a freelancer

The Working Conditions Act obliges employers and clients to ensure a safe and healthy working environment. This duty of care also applies to freelancers working on-site for a client (Articles 3 and 16 of the Arbowet). In practice, this means the client is responsible for the physical working conditions at the workplace, even when you're working there as a freelancer.

For psychosocial safety at work, such as protection against harassment, bullying, or sexual harassment, the situation is different. The Arbowet obliges employers to pursue policy to prevent psychosocial workload (Article 3, paragraph 2 of the Arbowet). But this obligation applies to employees. That means people working under an employment contract, but also people who don't have an employment contract but do factually work under the client's authority. As a freelancer who works independently and on equal footing with a client, you generally don't fall under that protection. However, if you do in fact work under your client's authority, you can be classified as an employee within the meaning of the Arbowet, meaning the client also has the psychosocial workload obligation from Article 3 paragraph 2 towards you. This therefore depends on the actual nature of the collaboration, not the contract form. More on this under the section on disguised employment (schijnzelfstandigheid). This doesn't mean that, if you don't work under authority, you have no options at all if you experience unwanted behavior at work. But the route then doesn't run through the Arbowet, but through the civil courts or through contractual agreements with the client.

Nevertheless, the policy around psychosocial safety within the organization where you work as a freelancer, such as a formal complaints procedure, may have been extended to freelancers. In that case, those procedures and the confidential counselor could also be open to freelancers. More on this shortly.

As a freelancer, you also have your own legal obligation under the Arbowet: you're required to take care, to the best of your ability, of your own safety and health and that of others at the workplace. This obligation concerns practical and physical aspects of safe working, such as properly using work equipment and protective equipment, and reporting hazards. The law doesn't impose an obligation on freelancers specifically regarding social safety or preventing unwanted behavior: the provision on psychosocial workload (Article 3, paragraph 2 of the Arbowet) is not included in the limited list of articles that apply to the self-employed.

Equal treatment legislation, such as the General Equal Treatment Act (AWGB) and the Equal Treatment of Men and Women Act (WGB), also protects freelancers. Direct or indirect distinction based on personal characteristics such as gender, origin, religion, age, or sexual orientation is prohibited, including in a contracting relationship- so also if you're not employed (Articles 7 and 1a AWGB, Article 2 WGB). An important practical advantage is that a reversal of the burden of proof applies here, and that this rule also applies to the self-employed: someone who presents facts that could justify a presumption of distinction doesn't have to fully prove that distinction- the other party must then show that they didn't act in violation of the law (Article 10, paragraph 1 AWGB). This significantly eases the freelancer's burden of proof compared to a regular civil procedure.

The Netherlands Institute for Human Rights (College voor de Rechten van de Mens) handles formal complaints about unequal treatment based on equal treatment legislation. This option is also open to freelancers. This complaints procedure is free. The Institute doesn't issue legally binding rulings, but its judgments do carry authority. That means the Institute can assess, as an expert body, whether discrimination has occurred, but cannot attach consequences to it. It's therefore not possible to impose a sanction or award damages. If you want that, you'll need to start a court procedure. The judge isn't bound by the Institute's ruling but does take it into account in their own assessment and can give it weight. In practice, the rulings can therefore bring about change. These complaint procedures can take a long time and require substantiation of facts that can support the presumption of distinction. But thanks to the reversal of the burden of proof mentioned above, this doesn't need to be conclusive proof- a plausible presumption is sufficient. There is a possibility of following an expedited procedure.

If you experience transgressive behavior as a freelancer, there are several civil-law routes that are, in principle, open to you:

• Unlawful act (Article 6:162 Dutch Civil Code): if a client, colleague, or third party displays transgressive behavior that causes you damage, you can file a civil damages claim against the person responsible. This route is directed straight at the perpetrator and is also open when the perpetrator isn't your client.
• Breach of contract (Article 6:74 Dutch Civil Code): if the contract includes agreements about behavior or a safe workplace and the client doesn't honor them, this may constitute a failure to perform that can require compensation. This is why a behavioral clause in the contract is so valuable: it turns an implicit expectation into an enforceable contractual obligation. Even without an explicit behavioral clause, a duty of care can, incidentally, be derived from the nature of the contract for services via the supplementary effect of reasonableness and fairness (Article 6:248, paragraph 1 Dutch Civil Code). A breach of that duty can then still constitute a failure to perform within the meaning of Article 6:74. This offers an extra angle, precisely when no behavioral clause has been included.
• Client's duty of care (Article 7:658, paragraph 4 Dutch Civil Code): this article covers an employer's duty of care for a safe working environment and also extends to mental or psychological harm from transgressive behavior. Paragraph 4 of this article declares the duty of care that an employer has towards its employees to apply correspondingly to the client of a freelancer, provided the freelancer was (partly) dependent on the client for their safety and the work actually formed part of that client's business operations. The major advantage of this route is the reversed burden of proof: the client is liable for the damage unless they themselves prove that they met their duty of care, or that the damage was significantly caused by the freelancer's own intent or conscious recklessness. This route has been explicitly opened up to the self-employed by the Dutch Supreme Court, and has since been applied in case law to situations of aggression and psychological injury in the workplace.

All three routes require evidence and aren't easy to pursue in practice, especially the first two. However, they are a safeguard, and it's important for freelancers to know they exist. For unlawful act (Article 6:162), the burden of proof lies entirely with the freelancer: they must demonstrate the unlawful act, attributability, the damage, and the causal link. For breach of contract (Article 6:74), this is somewhat more favorable: the freelancer must prove the shortfall, the damage, and the causal link, but attributability is presumed- the client must show that they aren't at fault. For the third route, the client's duty of care (Article 7:658, paragraph 4), the burden of proof is most eased: the freelancer only needs to make it plausible that they suffered damage in the course of their work, after which the client must prove that they met their duty of care. In practice, evidence is still achievable for physical violence, because independent witnesses and police statements can provide strong evidence. For less visible forms of transgressive behavior- verbal harassment, unwanted sexual remarks, subtle bullying without witnesses- the freelancer's evidentiary position is considerably weaker, because independent witnesses or medical documentation are often lacking.

Costs and duration are also a real barrier; even in a winning case, not all costs are reimbursed. In addition, such a procedure, especially when multiple parties are involved, usually takes a considerable amount of time- in practice, one to two years can easily pass between the incident and the ruling. Legal expenses insurance can partly remove this obstacle. Various insurers now offer legal expenses insurance specifically tailored to freelancers, which can also cover disputes with clients. Per policy, it should be checked whether disputes about transgressive behavior are actually covered.

For serious forms of transgressive behavior- such as rape, sexual assault, threats, or stalking- you can also, as a freelancer, file a police report against the person who committed the criminal offense. A report is always directed against the person who caused the behavior, not against the client as such- this could be the client themselves, but also a colleague, a customer, or a third party. Criminal law looks at the perpetrator of the offense, not the contractual relationship within which it took place. This is precisely why this route is entirely independent of whether you're employed or self-employed: anyone with knowledge of a criminal offense may report it, regardless of their own employment relationship. A report can lead to criminal prosecution. Criminal law is a heavy route, meant for situations where an actual criminal offense has occurred, and exists alongside- not instead of- the civil-law routes mentioned earlier. Through criminal proceedings, you can also claim damages directly as a victim. Anyone who has suffered direct damage as a result of the offense can join the criminal case against the perpetrator as an injured party (Article 51f Dutch Code of Criminal Procedure). This is also possible for freelancers. The advantage of this route is that you can claim both material damage (such as lost income or therapy costs) and immaterial damage (compensation for pain and suffering) in the same procedure as the criminal case, without having to start a separate civil procedure. However, some limitations apply. The claim is only awarded if the suspect is actually convicted and the offense is proven (Article 361, paragraph 2 Dutch Code of Criminal Procedure); in the event of acquittal, the claim lapses. In addition, the criminal court can still refer the claim to the civil court.

One of the few direct tools you have as a freelancer is including behavioral agreements yourself in your contract for the assignment. The client is bound by this as soon as they accept the provision. Breach of such an agreement can constitute a failure to perform the contract (breach of contract), which can require compensation. You're not dependent on an organization's policy- you can initiate and record this yourself through the contract.

Possible contractual provisions:

• A behavioral clause referring to any code of conduct the client may have. If the organization doesn't have such a code of conduct, you can propose your own text in the contract about behavioral agreements. You could also attach a penalty clause to this.

• A reference to internal and external reporting and complaints routes, agreeing that you too have access to this route if one exists, even if that procedure isn't formally written for the self-employed. It can't be ruled out that the party being complained about objects to this and invokes the original complaints procedure, which excludes freelancers.

• An agreement that you can make use of the internal or external confidential counselor, even if the confidential counselor scheme isn't formally written for the self-employed.

• A provision on early termination in the event of transgressive behavior, without financial claims either way for work already carried out, gives you the right to stop the collaboration immediately without the risk of a counterclaim for premature termination.

The Mores toolkit offers freelancers a draft clause they can include in their agreement.

The Whistleblower Protection Act (Wet bescherming klokkenluiders) also gives freelancers the option to report wrongdoing within the organization they work for, and the protection against detrimental treatment this law offers applies to them too, in principle. The law doesn't tie this protection to the traditional concept of "employee," but to the broader concept of "reporter": a natural person who, in the context of their work-related activities, reports a suspicion of wrongdoing, regardless of the nature of that work. The prohibition on detrimental treatment therefore explicitly also applies to the self-employed. Premature termination of an agreement for the supply of goods or services can be a form of prohibited detrimental treatment.

One caveat is important: the legal obligation for an organization to set up an internal reporting procedure applies, in the first place, to its own employees. The law does allow the organization to open this procedure up to people who aren't employees but do carry out work-related activities, such as freelancers- but this isn't mandatory. The prohibition on detrimental treatment itself is separate from this, however: a freelancer who reports wrongdoing still falls under the protected category of "reporter" and therefore still benefits from the prohibition on detrimental treatment and the associated presumption of proof. If your client has a reporting scheme, check whether it also applies to freelancers. If the client has no internal reporting scheme, or it doesn't apply to freelancers, you can also report to the appropriate competent authority. Which authority is competent depends on what you want to report. If you don't know, you can contact the advice department of the House for Whistleblowers, which provides free information.

CAO agreements- including provisions on confidential counselors, codes of conduct, and reporting procedures- generally apply to employees. They don't automatically apply to freelancers, even if they work for an organization covered by a CAO. Nevertheless, more and more CAOs contain specific agreements about freelancers. Those agreements are mainly about the deployability of freelancers: when they may be hired and under what conditions. It's therefore always worth checking whether the CAO that applies to your client also contains agreements for freelancers. For example, whether provisions on social safety policy also extend to contracts for services or works.

In practice, a client may voluntarily include freelancers under their own policy, such as the internal complaints scheme or the confidential counselor, but this isn't a legal obligation.

As a freelancer, you generally have no legal right of access to the internal or external confidential counselor of the organization you work for.

In practice, this varies widely: some organizations also make their confidential counselor available to freelancers, others don't. It's worth asking about this at the start of a collaboration.

Freelancers who fall outside the internal structure and therefore can't use the organization's confidential counselor can always turn to Mores's confidential counselors, regardless of their contract status.

If a freelancer effectively functions as an employee- for example with fixed hours, working times, and a way of working determined by the client, a relationship of authority, and structural deployment for a single client- this may constitute disguised employment. The freelance construction is then a sham construction. What matters isn't what the agreement is called, but how the collaboration is actually structured in practice. This can have employment-law consequences, in the sense that employment-law protection does apply after all, including access to the confidential counselor, CAO protection, and social security. But it can also have tax consequences, in the sense that payroll taxes and social security contributions should have been withheld.

To clarify the line between self-employment and an employment contract, the current cabinet has put forward a legislative proposal (the Self-Employment Act, "Zelfstandigenwet"). The Tax Authority has since resumed enforcement. This, and the assessment by courts, is currently, pending the new law, based on the Supreme Court's ruling (the Deliveroo judgment). A number of signals can help assess whether this might be the case. Does the contractor have little actual freedom to decline assignments or set their own hours? Can the client unilaterally change the content of the agreement or the way of working, without negotiating about it? Is the way of working monitored? Is payment made as a fixed, periodic payment that the client initiates on their own, rather than through the contractor's own invoicing? Does the work form a core activity of the client, rather than an incidental job? Does the contractor present themselves little or not at all as an independent entrepreneur, and is the income too low to arrange their own provisions against incapacity for work as a self-employed person? And, finally, has the contractor worked for the same client for a longer period and for a substantial number of hours? On this last point, there is even a legal presumption (Article 7:610a Dutch Civil Code): anyone who has worked for the same client for at least three months and an average of twenty hours per month is presumed to be working under an employment contract, after which the client must show that this isn't the case.

None of these signals is decisive on its own: the court weighs all the circumstances of the case together.

This is legally complex and highly dependent on the situation. Please refer to the Legal Aid Counter (Juridisch Loket), the FNV, or the Kunstenbond for further information and advice.