Truck driver was Self-employed and, for that Reason, had to Pay the Damages to the Client’s Car Himself

A driver who had hired himself out as a self-employed person to a transport company had to pay the damage, caused to the transport company's truck in two incidents, himself, because there was no employment contract.

A transport company (a general partnership) carries out transport assignments with seven trucks, most of them for one large client, a distribution undertaking. For this work the company employs four persons. In addition, self-employed persons are hired as truck drivers, and one of the partners drives the trips himself.
During three weeks in February and March 2024, one of the drivers carried out trips for the transport company. Both on 27 February 2024 and on 14 March 2024, the driver ended with the truck in a ditch in Belgium. Both times, the truck had to be hoisted out of the ditch. The first time, an exterior rear-view mirror had to be replaced. The second time, the truck had to be picked up by a low loader, because the clutch had to be replaced. The transport company also stated that the body of the truck was damaged.
For the first incident, the transport company received an invoice for the costs of hoisting the truck. The exterior rear-view mirror was replaced by the transport company as well.
In the second case, the hoisting costs were paid locally by the driver, who had the invoice put on the name of his sole proprietorship. The driver sent an invoice to the transport company for his work ad 25 euros per hour + VAT. The transport company then deducted the costs it had paid. Also the costs of a traffic fine in Belgium were deducted.
The driver disagreed. Before the Sub-district Court he claimed that the deducted amount should still be paid to him, and he also claimed that the transport company should pay the costs of the hoisting he had paid himself in the second incident. The driver stated that he was working under an employment contract then and that, for that reason, the costs should be borne by the transport company, since there was no intent or deliberate recklessness.
The Sub-district Court now had to decide whether or not there was an employment contract. The Sub-district Court rejected the driver's appeal to the legal presumption concerning the nature of the employment relationship, because this requires a working period of three months in advance. The Sub-district Court decided that there was no employment contract. Following the rules of the case law of the Supreme Court, the Sub-district Court had to start by determining what rights and obligations the parties had agreed upon, in which the intentions of the parties and the social position of the parties might play a role, and then to determine on the basis of the statutory regulation of the employment contract, whether there was an employment contract, without assigning a role to the parties’ intentions.
As for establishing the rights and obligations the parties had agreed upon, the Sub-district Court first established that there was no written agreement. The hourly rate of 25 euros was half of the amount the transport company could charge its client for and 9 euros more than what the employees received. The driver had sent an invoice for that amount to the transport company. According to the Sub-district Court, this did not explain the existence of an employment contract. Each time he had worked, the transport company had asked the driver whether he could make a trip only a few days in advance. He could have himself replaced and had actually done so. According to the Sub-district Court, this did not explain an employment contract either. The driver, who had previously been a courier, complained that he had not been trained by the transport company and that he himself had to ask someone to do the job. According to the Sub-district Court, the latter point did not explain an employment contract either. Likewise, the payment of the second incident’s hoisting costs by the driver himself and the fact that the invoice had been addressed to his sole proprietorship failed to explain an employment contract, according to the Sub-district Court .

All in all, the Sub-district Court decided that there had been an assignment agreement and not an employment contract. According to the Sub-district Court, the driver therefore had to pay major part of the damages himself.
Further proceedings on the other part are still going on, because they required further evidence.

Ever since 1 January 2025, when the Tax Authorities started enforcing sham self-employment again, the question of when there is an employment contract with an employee and when there is an assignment agreement with a self-employed person has become a hot topic.
Over recent weeks and months, many assignment agreements were replaced by employment contracts and in many other cases this will probably still have to take place.
The greatest push factor seems to be that, as of 1 January 2025 and retroactively, the Tax Authorities may impose additional assessments for payroll tax and employee insurance premiums again. However, if there was already an employment contract, the client/employer runs other risks. If the employer is obliged to participate in an industry-wide pension fund, the additional assessment of pension premiums is a major risk.
Another risk lies in the possibility that the self-employed person claims that he should have been considered to be an employee much earlier. In that case, claims that the employee may submit may relate to, for example, holiday allowances, payments during holidays, wages during illness, but also, as in the above case, not having to bear damage occurred during the performance of the work.
Therefore, clients/employers who convert an assignment agreement into an employment contract are advised to regulate the consequences of the conversion for claims from the past in a settlement agreement.