Be Aware - December 2021

Belgian tribunal ruled that Deliveroo riders are independent contractors

On 8 December 2021, the Brussels Labour tribunal ruled that Deliveroo riders are independent contractors and not employees. This decision contrasts with the majority of decisions previously issued by courts and tribunals in other countries, where contracts covering similar services provided via digital labour platforms were qualified as employment contracts¹.

In this case, the tribunal found that certain specific criteria, provided by law and applicable in the transport sector², created a presumption that the contractual relation between the riders and Deliveroo is an employment contract (e.g., absence of financial risk for the riders, lack of decision-making power), but that there were sufficient general criteria to rebut this presumption (e.g., lack of power to sanction riders, riders’ freedom to organise their work and working time).

In particular, with regard to the existence of a subordinate relationship between the riders and Deliveroo, the tribunal referred to the French case law in the Uber case³, where the courts considered that the subordinate relationship resulted from the possibility for the employer to impose sanctions on the riders, in certain circumstances. In this case, the tribunal found that such power was actually or potentially lacking. In particular, the tribunal noted that riders could refuse rides without incurring penalties. The tribunal also stressed that a geolocation system was not in itself a form of hierarchical control.

The tribunal also justified departing from French and Dutch case law on the matter, explaining that:

• there was no penalty system in place for riders, unlike the Take it Easy case of the French Cour de Cassation of 28 November 2018⁴;
• riders were not required to follow a particular route during their journey, in contrast to the riders in the case pleaded before the French Cour de Cassation on 4 March 2020 concerning Uber⁵;
• contrary to the Deliveroo Netherlands case, where the Amsterdam Gerechtshof⁶ found that the services provided by the riders were identical whether they were performed as an independent contractor or under an employment contract, there is no such similarity in the Belgian Deliveroo case, given the fact that no rider performs similar services under an employment contract in the case at hand.

For all these reasons, the tribunal found that there was no contract of employment. It is interesting to note that a significant part of the tribunal’s conclusions is in fact based on testimonies of the riders themselves, rather than on the wording of their service agreement with Deliveroo. This demonstrates the importance of the way the services are actually performed, when reclassification issues arise.

It is likely that this case will continue to raise comments. It is not excluded that an appeal will be filed against the decision and it should be noted that the European Commission just published a proposal for a Directive on improving working conditions in platform work⁷…

Angela Broux

The European Commission proposal relating to the establishment of a rebuttable legal presumption that individuals working for a digital work platform are working under an employment contract

Faced with the development of the platform economy, accelerated by the COVID-19 pandemic, on 9 December 2021, the European Commission tabled a proposal for a Directive on improving working conditions in platform work. This proposal aims to improve the working conditions of individuals performing platform work while at the same time supporting the conditions for sustainable growth of digital labour platforms in the European Union.

In summary, the main principles set forth in this proposal are:

• The establishment of a rebuttable presumption that individuals working for a digital work platform are working under an employment contract, to ensure that said individuals have a correct employment status in light of their actual relationship with the digital work platform and have access to applicable labour and social protection rights.

The digital labour platform and the person performing work on the platform are rebuttably presumed to be bound by an employment contract when the platform exercises "control over the performance of the work". The proposal provides that this control condition is met when at least two of the following conditions are met:

• the platform sets the remuneration or the upper limits of the remuneration;
• the platform requires compliance with specific binding rules regarding appearance, conduct towards the recipient of the service or performance of the work;
• the platform supervises the performance of work by electronic means;
• the platform effectively restricts the freedom of the workers to organize their work or absence, to accept or refuse tasks or to use subcontractors or substitutes;
• the platform restricts the possibility to build a client base or to perform work for a third party.

This presumption is binding on all and applies in the context of judicial and administrative proceedings, including those initiated by national authorities (including the social security administration). However this presumption is rebuttable and, in their legislation, Member States should provide that the digital labour platform and the individuals concerned should have the possibility to demonstrate that their contractual relationship is not based on an employment contract but on a service agreement and that the individuals concerned are self-employed.

• The digital work platform must inform the platform workers (self-employed and employees) as well as the workers' representatives.

The business model of digital work platforms uses algorithmic management. The use of algorithmic management presents risks of discrimination. The European Commission therefore intends to ensure fairness, transparency and accountability in algorithmic management in the context of platform work.

To this end, the proposed Directive provides for an obligation for the platform to inform platform workers (employees and self-employed) of the monitoring (including customer ratings) and automated decision-making systems used and of the impact of these systems on the working conditions (in particular regarding allocation of tasks, payment of bonuses, etc.). Employee representatives must also be consulted on and informed of decisions that may lead to the introduction of substantial changes in the use of automated monitoring and decision-making systems.

• The digital labour platform (which is an employer) must declare the platform work and share certain information with the relevant authorities in the State where the work is performed.

The purpose of this obligation is to enable the competent authorities in the Member State where the work is performed to enforce existing rights and obligations regarding working conditions and social protection (including the collection of social security contributions). The information to be provided includes the number of persons performing services through the digital labour platform, their status, the general terms and conditions of their contrat.

• The establishment of a system to protect platform workers (self-employed and employees).

The proposal also requires Member States to put in place a protection systems for the benefit of:

• platform workers (self-employed and employees) who complain about non-compliance with the provisions of the Directive;
• platform workers (self-employed and employees) in case they are dismissed or subject to equivalent measures such as deactivation of their account, because they have exercised their rights under the Directive. In such cases, the platform workers will have the right to request the platform to provide a written document stating the grounds for the decision. The proposed Directive also provides for an adjustment of the burden of proof by Member States: if platform workers believe that they were dismissed (or subject to equivalent measures, such as account deactivation) because they have exercised their rights under the Directive, and are able to prove this assertion with facts, then the digital work platform must prove that the dismissal (or equivalent measures) was based on other objective reasons.

At this stage, the document is only a proposed Directive. It will therefore be necessary to pay close attention to the reactions that this proposal will generate at various levels. Furthermore, if the proposed Directive is adopted, setting out the main principles to be implemented, it should be noted that it will be for the Member States to adopt legislation implementing the Directive.

While the proposed Directive does not exclude the possibility for platform workers to work as self-employed persons under service agreements, such an arrangement will necessarily imply that the working conditions will have to be such that the presumption set forth by the directive, if adopted, will be rebutted. The adoption of the Directive will inevitably lead platform operators to review the way they operate.

Frédérique Gillet

DLA Piper Employment publications of recent months

Kan een werknemer tijdens een periode van langdurig ziekteverlof worden ontslagen?

In HR Magazine, by Pierre Dion