Must a freelancer perform the work personally?

It means the person is expected to carry out the agreed work themselves, rather than being free to arrange its performance entirely through others. 

Article 7:659(1) of the Dutch Civil Code provides that an employee must perform personally, with replacement requiring the employer’s consent. Deliveroo did not abolish that provision. 

Personal performance can also arise in professional service arrangements. Article 7:404 addresses an assignment entrusted with a particular professional in mind, including where the contracting service provider is a firm. It allows performance through others under that person’s responsibility where this follows from the assignment. It does not impose an absolute ban on delegation across all freelance contracts.

In Deliveroo, the Supreme Court held that substitution was compatible with employment. Replacement occurred in practice, but its practical significance was limited. The ruling did not depend on finding that substitution never happened. 

Uber confirmed that there is no fixed hierarchy among the relevant circumstances. External entrepreneurship can also matter; this does not mean that every factor carries equal weight in every case. 

Following Deliveroo, the Tax Administration withdrew approval of model agreements based on free substitution from 1 January 2024. 

For comparison, BCA Logistics concerned UK statutory “worker” status, not a Dutch employment contract. The EAT dismissed the appeal against the finding that the substitution clause was not genuine. It also explained that non-use alone does not invalidate a genuine right. UK tests must not be transplanted into Dutch law.

Start with an honest description of the service. If a client is engaging a named designer, adviser or trainer for their particular expertise, the contract should reflect that expectation. Do not promise unrestricted substitution if both parties know it will be refused. 

For example, a client may commission a named trainer to deliver a specialist workshop. The assessment should also examine who designs the programme, negotiates the fee, organises delivery and bears the agreed commercial risks. Personal delivery alone does not resolve the classification. 

Where replacement is permitted, clarify: 

• Whether the freelancer selects the replacement or the client arranges separate cover. 

• Which qualifications, registrations, confidentiality and security requirements apply. 

• Whether notification or approval is required, and the grounds for refusal. 

• Who contracts with and pays the replacement, and who remains responsible for delivery. 

Suitable qualification requirements do not automatically make replacement impossible. Their practical effect matters. The distinction between the written clause and its actual significance is addressed in Deliveroo, particularly paragraph 3.3.5.

The Zelfstandigenwet is a proposed Dutch law intended to clarify when work can fall outside employment. As of 3 November 2026, it is not in force. 

The October 2026 consultation draft combines a self-employment test with a working-relationship test. The latter concerns the parties’ intention, freedom over how work is performed, freedom over time and place, and working for one’s own account and risk. 

Personal performance is not a separate condition in that proposed test. This does not mean it has disappeared from current law. Failure to meet the proposed safe harbour would leave assessment under the existing framework. The proposed tests are explained in the consultation overview and the explanatory memorandum. 

Keep a proportionate record of the arrangement: 

• The agreed personal-performance requirement and reasons for it. 

• Any replacement right and the procedure for using it. 

• Actual requests, responses and reasons for refusal. 

• Relevant handover, contracting and payment arrangements where replacement occurs. 

• Changes to the assignment that affect these arrangements. 

There is no general requirement to maintain a substitution register or arrange a replacement merely to demonstrate independence. If no replacement was needed, record that accurately. The relevant question under Deliveroo is the significance of the arrangement within the relationship as a whole. 

For Zooly, a suitable workflow could connect these records with the service agreement and wider assessment. Check available functionality before promising automated verification. Avoid collecting unnecessary personal data about prospective replacements.