Why rules and protocols are not the same as employer supervision and control under the Zelfstandigenwet

The proposed Dutch Zelfstandigenwet aims to give freelancers and clients greater certainty about working outside employment. However, concerns published by ZZP Nederland on 12 October 2026 highlight a practical question: how should independence be assessed when professional rules already determine part of the way work must be performed? 

Its advisory council discussed healthcare protocols, accountants’ professional rules and similar requirements affecting regulated professions. The participants supported the proposed business test (zelfstandigentoets) but called for the working relationship test (werkrelatietoets) to be removed, questioning whether its criteria would provide sufficient clarity in practice. This is a stakeholder position, rather than a change to the proposal. 

For clients, the issue goes beyond the consultation. A classification assessment needs to distinguish obligations attached to a profession from instructions through which a client directs someone’s work. 

The Zelfstandigenwet would introduce two tests: one examining the freelancer’s business and another examining independence within a particular assignment. Together, they would establish a safe harbour for relationships satisfying the conditions in practice. The government is targeting January 2028 for implementation, but the legislation remains a proposal. 

Under the proposed working relationship test, the freelancer must be free to determine how the work is performed, while the client may give instructions about what is required. The test also addresses freedom over working times and location, subject to exceptions for work inherently tied to particular places or times, and working for the freelancer’s own account and risk. 

The question raised by regulated professions is how that freedom should be understood when some working methods are already prescribed independently of the client.

Professional obligations can apply regardless of who engages the freelancer. A lawyer’s professional duties, for example, do not arise simply because a particular client wants the lawyer to work in a certain way. 

This distinction is recognised in the explanatory memorandum accompanying the earlier Vbar proposal, published in July 2025. It explains that binding professional requirements, including those applying to lawyers and healthcare professionals, do not themselves indicate authority. It makes a similar distinction for general requirements, such as safety rules applying to visitors and other third parties. That memorandum concerns a different legislative proposal and should not be presented as the wording of the Zelfstandigenwet. 

The practical implication is that the existence of a rule is insufficient on its own. Its purpose, scope and application need to be understood before conclusions are drawn about client control.

A regulatory origin does not make every instruction neutral. The same Vbar memorandum explains that an organisation’s statutory responsibility for service quality can lead it to impose detailed requirements and control the worker’s activities. Those circumstances can indicate authority. 

An illustrative distinction is between a professional applying an external standard using their own judgement and a professional whose daily methods are prescribed, monitored and corrected by the client. Both may describe their work as “following protocols”, but that description leaves important differences unexplained. 

Consequently, clients should examine what happens around the protocol: who makes operational decisions, what discretion remains and how the client intervenes in the work. These questions help reveal the relationship behind the written requirements. 

Professional autonomy is relevant, but it does not settle classification by itself. In its Deliveroo judgment, the Dutch Supreme Court confirmed that employment status depends on all the circumstances considered together. Relevant circumstances include the organisation of the work, organisational integration, remuneration, commercial risk and entrepreneurship. 

A professional may therefore exercise considerable judgement while still working under an employment contract. Equally, the existence of some instructions does not automatically establish employment. 

The proposed Zelfstandigenwet preserves another important distinction: failing one or both safe-harbour tests would not automatically make someone an employee. The relationship would instead be assessed under the existing framework of Article 7:610 of the Dutch Civil Code.

For Zooly, the practical relevance lies in explaining supervision and control accurately. A question such as “Does the freelancer follow instructions?” needs context to produce a useful answer. 

The explanation should distinguish professional obligations, general site requirements and instructions governing the freelancer’s daily working methods. It should also explain that these categories can overlap, particularly where a client implements regulatory responsibilities through operational control. 

This distinction provides a clearer basis for understanding classification risk without suggesting that professional compliance either establishes or prevents employment. 

Clients should identify which requirements arise from legislation or professional standards and which they introduce themselves. They should then examine how those requirements operate during the assignment, including the freelancer’s decision-making freedom and the extent of managerial intervention. 

Agreements should describe the required service and applicable standards clearly, while reflecting how the work is actually performed. Calling a requirement a “professional protocol” cannot substitute for examining the underlying relationship. 

Finally, clients should assess these circumstances alongside the wider classification factors and follow the development of the Zelfstandigenwet. The consultation remains open until 29 October 2026; its proposed safe harbour should not yet be treated as available legal certainty.