The agency or consultant contract is a contract by which the agent undertakes to render a service to the principal, in return for remuneration. However, unlike an employee, the agent is independent. This means that the agent bears the economic risks of his business alone and uses his own equipment. Furthermore, the principal is not obliged to pay the agent's social security contributions.
Distinction between agency and employment contract
It may be tempting for an employer to conclude an agency contract with a person who performs services for him. However, the distinction between a mandate and an employment contract does not depend on the name the parties have given to the contract. It will be based on a list of objective criteria. Nevertheless, there are often borderline cases...
The employee is subject to the instructions of his employer. He must follow them to the letter. The agent, on the other hand, enjoys a certain freedom. The principal can only give him general instructions to accomplish the tasks entrusted.
Greater independence also means greater responsibility. The agent assumes the economic risks of his activity and makes his own investments. He is not economically dependent on a single client. This criterion is particularly delicate when the self-employed person carries out his activity with his former employer. At the end of the employment relationship, it may be an abuse of rights!
The agent is autonomous in his work, in particular with regard to his schedules and time management. However, this criterion alone is not decisive, as some employees may have a certain amount of autonomy in the organization of their work even if they are not independent.
Not having to pay social security contributions? Not being reimbursed for expenses and materials? Entering into an agency contract has certain advantages for the employer. Some situations border on abuse of rights. The employer must be vigilant.
Start of the independent status
An employee resigns with the aim of becoming self-employed and starting an independent activity. He must be careful because he must respect certain rules, despite the end of the employment relationship.
The employee is subject to a duty of loyalty towards his employer during the notice period, even if he is released from his obligation to work. The possibility of starting a self-employed activity during this period is limited.
Duty of confidentiality and unfair competition
The employee may be tempted to poach customers or to use the former employer's secret manufacturing processes. Such conduct may violate the employee's duty of confidentiality to which he or she is subject even after the employment relationship has ended. It may also fall under the Unfair Competition Act. The employee risks a lot!
The employer is only partially protected by the duty of confidentiality and the Unfair Competition Act against the competing activities of his former employee. Under certain conditions, both employer and employee can establish a non-competition clause. The employee's possibilities to start a competing independent activity will then be limited.