It is known that industry­wide pen­sion funds act­ively approach employ­ers who may fall with­in their scope. Com­pan­ies are, how­ever, less aware of the risks of pos­sible claims of pen­sion premi­ums for bogus inde­pend­ent con­tract­ors.

The rul­ing of the Supreme Court in Novem­ber 2023 should be seen as a wake-up call for all com­pan­ies. The Supreme Court ruled that Deliv­eroo must pay pen­sion premi­ums for the ‘riders’ to the industry­wide pen­sion fund Trans­port­a­tion with retro-effect.

The main ques­tion that the Supreme Court had to answer upon, was wheth­er the ‘riders’ of Deliv­eroo are bogus inde­pend­ent con­tract­ors and there­fore ‘employ­ees’. This would lead to a man­dat­ory par­ti­cip­a­tion in the Industry­wide pen­sion fund Trans­port­a­tion. Deliv­eroo, which was a plat­form where con­sumers could order meals online and have it delivered to their home, hired these ‘riders’ based on an inde­pend­ent con­tract­ors con­struc­tion. How­ever, the industry­wide pen­sion fund Trans­port­a­tion claimed that the ‘riders’ are ‘bogus’ inde­pend­ent con­tracts and should be qual­i­fied as employ­ees. There­fore they would  accrue pen­sion enti­tle­ments with them and charged Deliv­eroo for € 639.372,98 in over­due premi­ums.

The sub­dis­trict court and the Court of Appeal decided earli­er that the ‘riders’ of Deliv­eroo fall with­in the scope of the par­ti­cip­a­tion decree. The Supreme Court upheld the rul­ing of the sub­dis­trict court and the Court of Appeal, refer­ring to a different ruling where the Supreme Court decided that the ‘riders’ work on the basis of an employ­ment agree­ment. This is import­ant, as only employ­ees (and not inde­pend­ent con­tract­ors) fall with­ing the scope of the  par­ti­cip­a­tion decree. The Supreme Court also decided that Deliv­eroo is a meal deliv­ery com­pany – and there­fore not an IT-com­pany, which Deliv­eroo claimed to be. This means that Deliv­eroo had to pay over­due pen­sion premi­ums to industry­wide pen­sion fund for Trans­port­a­tion.

The rul­ing has far-reach­ing con­sequences. Industry­wide pen­sion funds can claim pen­sion premi­ums ret­ro­act­ively from employ­ers who hire bogus inde­pend­ent con­tract­ors. This could lead to sig­ni­fic­ant claims from the pen­sion funds. There­fore, it is essen­tial for com­pan­ies to care­fully assess wheth­er their inde­pend­ent con­tract­ors should be seen as ‘bogus’ inde­pend­ent con­tract­ors.  If this is not done cor­rectly, the risk remains that the com­pan­ies face ret­ro­act­ive claims from the pen­sion fund.

Do you have ques­tions about this or would you like to dis­cuss the (qual­i­fic­a­tion of) employ­ment agree­ments with­in your com­pany? Feel free to con­tact us.

Would you like to know more about the sub­ject of inde­pend­ent con­tract­ors? Click here!