Bogus self-employment: Client can reclaim fees

Companies can reclaim overpaid money from a bogus self-employed person if the corresponding wage is lower than the fee.

Bogus self-employment can also be an issue in the skilled trades if subcontractors or freelancers do not meet the legal requirements. For example, construction workers who perform simple tasks , receive a fixed hourly wage , and do not appear to be acting as entrepreneurs in the market are regularly considered employees and not self-employed. The client then faces the risk of substantial back payments to social security.

On the other hand, he can reclaim fees paid if they exceeded an employee's wages. This was the ruling of the Berlin-Brandenburg Regional Labor Court.

The case

A consultant worked for a company. According to the consulting contract, she received a fee of 75 euros per project hour. After the collaboration ended, the German Pension Insurance determined during a company audit that the consultant was falsely classified as an employee . The company was subsequently required to retroactively pay the social security contributions . It then demanded repayment of her fee of 38.154,39 euros from the consultant.

The judgment

The Berlin-Brandenburg Regional Labor Court ruled that the consultant must repay part of the fee paid, namely €20.609,64 . The court found that the requirements of Section 812 Paragraph 1 Sentence 1 Alternative 1 of the German Civil Code (BGB) were met: If a seemingly freelance employee subsequently turns out to be an employee, the client can demand repayment of their payments, provided that the normal salary in an employment relationship is lower than the agreed fee.

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The employer only owes the usual remuneration.

If there is no explicit remuneration agreement for the resulting employment relationship, the usual remuneration is deemed to be agreed upon according to case law. Since the parties provided no information on this, the court used obvious indicators and, among other things, the earnings structure survey of the Federal Statistical Office as a basis for estimating the appropriate salary.

Berlin-Brandenburg Regional Labour Court, Judgment of 30 October 2025, Case No. 5 Sa 1041/24

What is bogus self-employment? Bogus self-employment This is especially the case when a supposedly self-employed person:

- works predominantly or even exclusively for one client and thus five-sixths or more of its turnover.
- Permanently in the company incorporated and, for example, has a fixed work area or a fixed workplace in the client's company.
- No own Employees employed.
- No own entrepreneurial risk wearing.
- Not free over working hours can decide.
- At Instructions his client is bound.

Source: German Pension Insurance

Avoiding bogus self-employment: When are helpers in a company subject to social security contributions? > Read more here! Status determination procedure: The status determination procedure of the German Pension Insurance can be initiated by the employer themselves if they want clarity about their own status or that of their employees. It is intended to provide legal certainty for both the employer and the pension insurance institutions as to whether they are self-employed or employees. The result provides five years of protection of legitimate expectations for the determinations made. The procedure is carried out by the German Pension Insurance Federation, Clearing Office, 10704 Berlin. > You can find out more here. The advisors at the Chambers of Skilled Crafts are happy to help you with legal questions!

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