You hire a specific engineer for their expertise. But must they do the work themselves, or may they send a peer if they are unavailable? That question, the obligation of personal labour, is one of the nine Dutch DBA Act factors.
In this article you will learn what personal labour means under the DBA Act, why it counts, and how replacement works in practice for IT hiring. You will also see how to arrange this point wisely without losing your grip on quality.
This blog is for clients: IT managers and hiring managers who hire a specific freelancer and wonder how replacement works.
Personal labour is factor 4 of the Deliveroo ruling, one of the nine factors the Tax Authority uses to assess your working relationship. Want the full overview? Read our guide to the 9 assessment factors of the Dutch DBA Act.
What does the Dutch DBA Act say about personal labour?
The Tax Authority checks whether the freelancer is obliged to do the work themselves. If they may not send a replacement without your permission, that points toward employment. An employee, after all, must come and work personally. If the freelancer may send someone else, that fits an assignment.
The idea behind it: with an assignment you buy a result, not necessarily the person. If the client does not mind who does the work, as long as the result is right, then there is room for replacement. With employment, it is precisely about the person who is employed.
Why does free replacement count as a sign of independence?
Because it shows you are buying a service and not employing a person. A self-employed person who may be replaced by a qualified peer behaves like a business that outsources work. That is fundamentally different from an employee who must appear themselves.
In practice, replacement strengthens the picture of independence, even if replacement never actually happens. It is about the possibility. If the agreement states the freelancer may be replaced by someone with equal qualifications, that is a signal toward a genuine assignment.
How does replacement work in practice for IT hiring?
For IT work, replacement is often harder than in some other sectors, because you often want precisely that one specialist with that specific knowledge. Still, you can make replacement possible without sacrificing quality, by setting conditions on who may replace.
A practical approach: agree that the freelancer may be replaced by someone with comparable qualifications and experience, provided you may assess that person. That way you keep grip on quality while strengthening the independence of the relationship. It is not all-or-nothing.
Do be realistic. If you demand that only that one person may do the work and exclude replacement entirely, you set a signal toward employment. A reasonable replacement arrangement is stronger than an absolute ban.
How do you arrange this wisely in your contract?
Include a replacement clause that allows replacement under conditions, instead of excluding it entirely. Record that a replacement must be equally qualified and that you may assess them. That way you combine independence with quality assurance.
A few principles that help:
- Do not exclude replacement entirely; allow it under conditions
- Set requirements for the qualifications of any replacement
- Agree that you may assess a replacement before they start
- Make sure the agreement on paper matches how it goes in practice
- Combine this with the other factors for a strong overall picture
Remember that the paper must match the practice. A replacement clause you would in reality never allow does not convince. The Tax Authority looks at how it really works, not just at the text.
Frequently asked questions about personal labour and replacement
Must I really allow replacement?
You are not legally obliged to allow replacement, but a complete ban is a signal toward employment. A reasonable replacement arrangement under conditions strengthens the picture of independence, without you handing over quality.
What if I want precisely that specific engineer?
That is understandable for specialist work. You may set requirements for a replacement's qualifications, so quality stays assured. But excluding replacement entirely is risky. A replacement arrangement with quality requirements is a good middle ground.
Does it count if replacement never actually happens?
Yes. It is about the possibility of replacement, not whether it ever happens. An agreement allowing replacement under conditions is a signal toward independence, even if the freelancer always comes themselves in practice.
Is a replacement clause enough to avoid risk?
No, it is one of nine factors. A replacement clause helps, but the overall picture counts. Moreover, the clause must match the practice: an agreement you would never honour does not convince the Tax Authority.
May the freelancer send just anyone?
No, you may set conditions. It is reasonable to require a replacement to be comparably qualified and that you may assess them. That preserves quality and combines well with an independent relationship. Free replacement need not be uncontrolled replacement.
Conclusion: allow replacement under conditions
The obligation to do the work personally points toward employment; the freedom to replace points toward independence. For IT hiring, you can make replacement possible under quality conditions, so you keep grip and strengthen the independence story.
For whom is this most urgent? For clients who exclude replacement entirely in their contracts. For whom less? For those already using a reasonable replacement arrangement with quality requirements.
My advice: do not exclude replacement, but arrange it with conditions. That way you combine quality with a strong Dutch DBA Act position.
Unsure how best to arrange replacement?
Want to look together at how to make your agreement strong on this point and the other eight factors? Plan a no-obligation call with me. We go through your situation, with no strings attached.
Note: regulations around the Dutch DBA Act may change. For current information, consult rijksoverheid.nl or belastingdienst.nl. This article is general information, not legal advice. For complex situations, I advise consulting an employment lawyer or tax advisor.
