Flexible Working and Independent Contractors
Flexible models such as part-time work, on-call work, averaging of working hours and working with independent contractors give employers considerable room for manoeuvre; but if they are set up wrongly, the relationship may be characterised as employment and give rise to retrospective obligations. We set up and manage your flexible working models, and assess and reduce the employment law risks of your relationships with independent contractors.
What flexible working models are available?
Alongside full-time, indefinite employment, the Labour Law allows a range of flexible models: part-time work, on-call work, remote work, make-up work and averaging of working hours. Under averaging, weekly working hours can be distributed differently across weeks, provided the average over a given period does not exceed forty-five hours; the extra hours in busy weeks then do not count as overtime.
Each model must be expressly agreed in the contract and the statutory conditions must be met. In on-call work, for example, the weekly, monthly or annual working time must be set and the call must be made a reasonable time in advance.
When is an independent contractor treated as an employee?
A relationship with an individual is characterised by what actually happens, not by the title of the contract. If the person works on the employer’s instructions, at set hours, within the employer’s organisation and for regular pay, they may be treated as an employee even if they issue invoices as an independent contractor. In that case, social security contributions, severance and notice pay and other employee entitlements arise retrospectively.
Scope
- Designing and managing flexible working models, assessing the employment law risks of relationships with independent contractors and working to reduce those risks
- Preparing averaging, part-time and on-call employment contracts
- Assessing subcontracting and temporary agency work structures
- Preparing freelance and service agreements
How We Work
- Reviewing the business’s working patterns and workforce needs
- Choosing the appropriate flexible model and setting out its statutory conditions
- Assessing the risk of existing independent contractor and subcontractor relationships on the basis of how they work in practice
- Preparing the contracts and implementation guidelines
- Implementing restructuring proposals for risky relationships
Team
Frequently Asked Questions
Is the employee's consent required for averaging of working hours?
Averaging must be agreed in the employment contract or a collective agreement. The averaging period is, as a rule, two months and can be extended to four months by a collective agreement.
Do part-time employees have different rights from full-time employees?
A part-time employee cannot be treated differently from a comparable full-time employee unless there is a justified reason. Pay and divisible benefits are paid in proportion to working time.
What is the principal employer's liability in a subcontracting relationship?
The principal employer is jointly liable with the subcontractor towards the subcontractor's employees for obligations arising from employment legislation, the employment contract or the collective agreement. If the relationship is a sham, that is, if the core business has been split up and given to the subcontractor, the subcontractor's employees are treated as the principal employer's employees from the outset.
What should we watch out for when working with an independent contractor?
Avoid features that would turn the relationship into employment, such as fixed working hours, being tied to the workplace, constant instructions and regular monthly payments. The person being able to serve more than one client and being paid according to the result of the work are indicators of independence.
Would you like to discuss this service? Schedule a meeting with us — the first meeting is free of charge.
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