Help, the pseudo-self-employed is claiming pension!
Publication date: April 8, 2025
As tax restraints gradually tighten and pseudo-self-employed individuals are increasingly hired as employees, several pension-related questions arise. One of these questions is whether it is possible to exclude this person, hereafter referred to as the employee, from the pension scheme for the past and/or the future.
Pension provider is an insurer company or premium pension institution (PPI)
In principle, the employee cannot be excluded from the pension scheme for the future, provided he/she falls under the participant definition in the scheme (see pension regulation). Although parties have contractual freedom, not agreeing to the pension (or signing a waiver) would mean the employer is acting contrary to the implementation agreement with the insurer company or PPI. The agreement practically always states that the employer must enroll all employees. Not agreeing to a pension constitutes a breach of contract towards the executor.
For the past, the matter is more nuanced. At the time an employment contract is signed, it is possible to draft a settlement agreement in which parties agree that the person has never been a participant in the pension scheme, that no pension agreement or scheme has come into being before the date of the employment contract, and that it was never the intention of the parties to agree on a pension, as evidenced by the past service agreement with the former pseud0-self-employed. It is advisable to consult with the insurer or PPI beforehand to avoid surprises.
Pension provider is an mandatory industry-wide pension fund
In principle, parties can neither agree for the past nor for the future that the person does not participate in the pension scheme. Participation is fully mandatory from a legal point of view. The person must be enrolled in the industry-wide pension fund's scheme for the future.
For the past, this is more complex. In principle, a worker can also claim pension for the past from the industry-wide pension fund, and the pension fund cannot easily dismiss this claim. For pension funds, the principle "no premium, but still entitled" applies. Pension funds have raised this issue with politicians because workers can, in principle, claim pensions indefinitely for the past, which could mean that the employer has to cover the premium. The last word on this matter has not yet been spoken.
