How does the Haviltex standard affect freelancer classification?

The Haviltex standard takes its name from the Supreme Court’s judgment of 13 March 1981. It establishes that contractual meaning cannot be determined through a purely linguistic reading alone. 

The assessment concerns the meaning that the parties could reasonably attach to the provisions in the circumstances and what they could reasonably expect from each other. Their background and the legal knowledge that could be expected of them may also matter. 

For a freelance assignment, this can involve examining the service agreement, negotiations, assignment descriptions, correspondence and practical performance.

Dutch law distinguishes two questions: 

1. What rights and obligations did the parties agree? These are established through interpretation. 

2. Do those arrangements constitute an employment contract? This is determined by applying employment law. 

For example, the court may first establish whether the freelancer was required to perform personally, accept assignments or obtain permission before changing working hours. Those findings then form part of the classification assessment. 

The parties’ intentions concerning substantive arrangements can help explain what they agreed. Examples include the intended scope of the assignment, control over working methods and responsibility for finding a substitute. 

Their wish to avoid an employment contract does not determine the legal classification. 

A statement such as “the parties expressly exclude employment” cannot override arrangements that meet the statutory employment definition. 

Practical performance can help establish the parties’ rights and obligations and whether contractual freedoms have real significance. 

Consider a substitution clause. The agreement may permit replacement, while correspondence shows that only the named freelancer is accepted. That discrepancy requires investigation. 

The same applies where a contract promises independent scheduling but the freelancer must obtain permission for every change. By comparison, evidence that both parties consistently respect scheduling freedom supports the practical meaning of that provision. 

These examples illustrate the assessment. Neither determines employment status alone. 

The engagement file should explain the substantive arrangement and any changes made during the assignment. Useful evidence includes: 

• the agreed services or deliverables; 

• who determines availability and working methods; 

• the purpose and limits of client instructions; 

• how substitution works, where applicable; 

• payment arrangements and allocation of commercial risks; 

• correspondence explaining negotiated terms or later changes. 

Records should reflect the relationship as it operates. They should not be created merely to repeat contractual declarations of independence.

• Describe the actual arrangement. Explain responsibilities, decision-making powers and expectations. 

• Distinguish agreement about working conditions from a shared preference for freelance status. 

• Clients should check whether promised freedoms remain usable once work begins. 

• Freelancers should retain negotiations and correspondence that explain important terms. 

• Investigate differences between the contract and practice. No isolated clause decides classification. 

• Review substantive changes during an assignment and record the revised arrangements clearly.