Be Aware – February 2024

Deliveroo: Brussels Employment Appeal Tribunal rules that couriers are employees

In many countries there have been lengthy debates on couriers’ employment status – or rather the absence of it. Typically, delivery platforms argue couriers are not employees, which is contested by either the couriers themselves or by the inspection services.

In Belgium, back in 2017, the public prosecutor launched an investigation into whether Deliveroo couriers don’t actually have an employment contract. On 13 December 2019, the public prosecutor started a procedure before the Brussels Employment Tribunal arguing they were employees. Both the National Office for Social Security, 3 national trade unions and around 30 couriers intervened in the procedure.

In a judgement of 8 December 2021, the Brussels Employment Tribunal concluded that Deliveroo couriers should not be considered employees and considered all claims unfounded. The public prosecutor, the National Office for Social Security, the trade unions and the couriers lodged an appeal against the judgement.

On 21 December 2023, the Brussels Employment Appeal Tribunal gave its preliminary judgement on whether the couriers are actually employees. It concluded that they are.

Although the Employment Appeal Tribunal first ruled on a number of technical disputes, the main point of the judgement is how the Employment Appeal Tribunal construes the specific criteria for distinguishing employees and self-employed persons in the transport sector stipulated by the Royal Decree of 29 October 2013. The Programme Act (I) of 27 December 2006 stipulates four general criteria: the wish of the parties, the freedom to organise working time, the freedom to organise work and the possibility of hierarchical monitoring. These criteria are applicable to all sectors, and specific criteria for a particular sector can complement these general criteria. The Royal Decree of 29 October 2013 introduced specific criteria for the transport industry.

These specific criteria frequently relate to “business”, which is defined as “the business performing the work or the business performing the work in which the person performing the work owns shares”. According to the Employment Appeal Tribunal, this definition would apply to Deliveroo and not to the couriers, although this point is disputed. When interpreting “business” in this way, applying the specific criteria leads to the conclusion that couriers are employees. While one could debate individual couriers have decision-making power for their own “business” (eg investing in a bicycle, determining how often and when they work), it’s clear an individual courier has no decision-making power over the “business”, construed as referring to the whole Deliveroo platform.

The specific criteria imply a reversible presumption of an employment contract if the majority of the specific criteria are met. Deliveroo couldn’t convince the Employment Appeal Tribunal that the couriers were genuinely self-employed. The fact that couriers have hardly any freedom to determine their working time and work methods once they’ve accepted a particular delivery was considered conclusive.

The Employment Appeal Tribunal referred the case to a hearing on 24 April 2025 to debate the consequences of the conclusion that couriers are employees, notably the applicable social security contributions and the benefits they can claim on the basis of their employment status (eg the 13th month payment, holiday pay, indexation of remuneration, potentially sick pay or an indemnity in lieu of notice).

The Employment Appeal Tribunal could lodge an appeal to the Supreme Court against the judgement and it’s likely it will give the amounts at stake. But the Supreme Court only examines whether or not the Employment Appeal Tribunal correctly applied the law. If the Supreme Court concludes it didn’t, it will refer the case to another Employment Appeal Tribunal to be heard again. And an appeal before the Supreme Court generally takes around a year and a half, so it will still take some time before the final outcome of this case becomes known.

 

Reasonable adjustments for definitively disabled employees

The Act of 10 May 2007 addresses different forms of discrimination. It stipulates that when an employee is indirectly treated less favourably based on disability, it should only be because it’s impossible to make reasonable adjustments.

There’s no exhaustive list of what the reasonable adjustments can be, but they could either be physical measures (eg making the workplace wheelchair accessible) or organisational measures. These organisational measures can include transferring the employee to a different role if they’re definitively no longer able to perform their contractual role but there is another vacant role in the organisation the employee can medically perform.

In its judgement of 18 January 2024, the European Court of Justice clarified the scope of the obligation. While it concerned a Spanish case, on this point Belgian law is similar to Spanish law. So the European Court of Justice’s conclusion that Spanish law was contrary to the European Directive 2000/78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation also holds for Belgian law.

The case concerned a truck driver who was – due to an accident at work – definitively no longer able to perform his contractual role. The employer terminated the employment contract by paying the statutory termination indemnity, even though there was actually a vacant role as driver in a different department and the employee was medically able and willing to perform that role (it was driving short local trips not involving heavy trucks).

In this case, there was no legal obligation to offer the vacant role to the person involved when proceeding to a termination by payment of the statutory indemnity in lieu of notice. Both Spanish and Belgian law only expressly enforce this requirement in the framework of a termination due to medical force majeure.

If an employee is definitively unable to perform their contractual role, the employer can – under the 1978 Act on Employment Contracts – follow a procedure to terminate the employment contract due to medical force majeure (ie without a statutory obligation to pay an indemnity in lieu of notice). The employer can only start this procedure if the employee has been on sick leave for nine months and if there’s no reintegration procedure at the request of the employee pending.

The procedure implies that the occupational health doctor examines the employee. The doctor should not only examine whether the employee will be able to resume working in the contractual role, but also whether an adjustment of the workplace or a switch to other work would be possible.

There’s no absolute requirement for an employer to accept the suggested adjustments or transfer. They can refuse, but the employer has to write a report explaining why the proposed measures are technically or objectively impossible or can not be reasonably claimed. The right for disabled workers to claim reasonable adjustments should in this regard be considered.

This legally prescribed procedure is only applicable for cases of termination due to medical force majeure, ie a termination without any termination indemnity as it’s impossible for the employee to continue working for medical reasons.

The 1978 Act on Employment Contracts states that the procedure for a medical force majeure does not prejudice the possibility to terminate the employment contract by paying an indemnity in lieu of notice.

In a judgement of 10 February 2022, the European Court of Justice held that offering a transfer to another role can be a form of reasonable adjustments for a disabled employee, if the employee can take up that role and if it doesn’t constitute a disproportional burden for the employer.

The European Court of Justice concluded that European discrimination law requires that when terminating the employment contract of a worker definitively unable to perform the contractual role by paying an indemnity in lieu of notice, the employer should at least examine whether it would be possible to continue employing the employee in a different role.

In the absence of a legally prescribed procedure, this might be difficult from a practical point of view, as the employer doesn’t have access to the employee’s medical file. A possible solution is that the employee agrees to have a medical examination by the occupational health doctor on a voluntary basis. The occupational health doctor can then impartially assess whether a transfer to a different vacant role is medically possible and provide the employer with suggestions.