When does substitution support freelance status?

No. A right of substitution allows someone else to perform work that the freelancer has undertaken. Its significance depends on the actual agreement and the wider working relationship. 

In Deliveroo, couriers were allowed to arrange replacements, and substitution occurred in practice. The Supreme Court nevertheless upheld their employment status. The right had limited practical significance: occasional replacement did not amount to a business model in which couriers could freely organise delivery through others. 

The 2025 Uber judgment confirmed that the relevant classification circumstances have no fixed hierarchy. 

The Tax Administration withdrew approval of model agreements based on free substitution from 1 January 2024. This removed their approval-based certainty. It did not prohibit substitution clauses.

A client may engage a freelancer because of their individual expertise, reputation or relationship with the business. An agreement requiring that person to perform the work can still be a contract for services. 

Article 7:404 BW addresses assignments given with a view to a particular person who practises a profession or business with, or is employed by, the contracting service provider. Within its scope, it requires that person to perform the necessary work personally, except where the assignment permits performance by others under that person’s responsibility. 

The contract should describe the real arrangement. It may require the named professional for particular tasks while allowing assistance or replacement for others. Bringing in an assistant is not necessarily the same as replacing the professional responsible for the assignment. 

EU: Yodel considered substitution as part of genuine independence. In B v Yodel Delivery Network, C-692/19, 22 April 2020, the CJEU considered the worker definition under the Working Time Directive. Its ruling addressed discretion to use substitutes, refuse tasks, work for third parties and organise working hours, subject to independence being genuine and the absence of subordination. The national court had to assess the relevant facts. 

UK: a limited replacement facility did not remove personal service. In Pimlico Plumbers v Smith, [2018] UKSC 29, substitution was limited to other Pimlico operatives. The Supreme Court upheld the finding that personal performance remained the dominant feature of the contract. 

UK: practical obstacles undermined a written substitution clause. In BCA Logistics v Parker, [2025] EAT 94, the appeal tribunal upheld worker status. It considered the lack of workable arrangements for substitution, including training and insurance. It expressly recognised that an unused right can still be genuine. 

As of 3 November 2026, the Zelfstandigenwet is still a proposal. It is intended to clarify when work can be performed independently through a safe harbour based on a self-employment test and a work-relationship test. The government’s intended commencement is January 2028, subject to the legislative process. 

The consultation proposal does not make appointing a substitute or maintaining a replacement register a separate safe-harbour condition. Its work-relationship test addresses freedom in performing the assignment and working for one’s own account and risk.

Start with a process that the parties can actually use. 

Selection and approval. Record who may propose or appoint a replacement, which tasks can be delegated and what qualifications or checks apply. If the client retains approval rights, describe their extent honestly. Clear, relevant criteria can make the arrangement easier to assess, but there is no universal rule that every freelance client must accept every qualified substitute. 

Payment and responsibility. Agree who engages and pays the replacement, who invoices the client and who remains responsible for delivery, errors and insurance. Where the freelancer uses another person to fulfil their own contractual obligation, Article 6:76 BW is relevant to liability for that person’s conduct. Check the applicable contract and any specific legal rules. 

Practical access. Arrange the necessary induction, permissions, equipment and secure access. A replacement should be able to perform the authorised work without having to use someone else’s personal login. 

Evidence. Retain relevant requests, responses, qualification checks, agreed fees and handover records. A replacement register may help organise this information. Keep personal information proportionate to the purpose. 

Use of an FMS. When using Zooly or another freelance management system, check which records and approval steps the configured system supports. A register or compliance score can organise evidence; it cannot establish the legal classification or make an unusable right effective.