Nature of the employment relationship when working for platforms - The Brussels Labour Tribunal rules that Deliveroo couriers are not employees

The sharing economy radically changes the nature of employment relationships. While initially the question was raised as to whether a platform could be a party to an employment relationship, the question now increasingly arises as to the nature of the employment relationship that the platform enters into with the employee.

Similar to a “traditional” employment relationship, the parties are free to choose the nature of the employment relationship: salaried worker or self-employed. However, it is important that the chosen qualification corresponds with the actual situation of the service provision. In case sufficient elements in the exercise of the relationship are incompatible with the qualification given by the parties, the relationship could be reclassified.

In Belgium, the Administrative Commission for the regulation of Employment Relationships has already been asked whether there is an employment relationship between a courier and Deliveroo, since it considered that the collaboration did not correspond to a self-employed relationship, but to an employer-employee relationship. The Administrative Commission for the regulation of Employment Relationships had also already ruled on Uber cases.

However, no Belgian Labour Tribunal had yet settled the matter, that is, until now.

The Labour Auditorate lodged the case before the Labour Tribunal of Brussels, after having investigated for more than two years the working conditions of Deliveroo couriers, in order to establish several infringements of regulations specific to employees, and in particular of regulations governing social security for employees.

Several couriers joined the case and demanded (since, just like the Auditorate, they considered that they should be considered employees of the platform), the application of the labour law provisions, namely the application of wage scales, the reimbursement of expenses, the compliance with the collective bargaining agreements concluded in the “Transport and Logistics” Joint Committees (no. 140 and 140.03), etc.

The Tribunal concluded that there is no reason to reclassify the employment relationship between Deliveroo and the couriers to an employment contract. Note that the Labour Tribunal also ruled on the application of the favourable tax regime of the sharing economy, which, according to the Tribunal, does not apply to courier services.

As to the existence of an employment contract, the Tribunal ruled as follows.

First, the Tribunal considers that the relationship between the couriers and Deliveroo falls within the scope of the activity of “freight transport” as defined in the Programme Law of 27 December 2006. In this “sector” (as in others, such as cleaning or construction), the nature of the employment relationship must be examined in light of 8 socio-economic criteria, such as the absence of a financial or economic risk for the courier; the absence of decision-making power over the company’s financial resources (i.e., the platform); the absence of decision-making power over the company’s purchase policy; the absence of the possibility of employing personnel to perform the agreed work; working with a vehicle not owned by the worker; etc.

The Labour Tribunal presumes the existence of an employment contract, after having assessed these socio-economic criteria, specific to the freight transport sector.

However, this is only a presumption. This presumption can be rebutted by assessing the four general criteria established to determine the nature of an employment relationship. These criteria are: the will of the parties; the freedom in the organisation of working time; the freedom in the organisation of work; and the existence of hierarchical control.

The Tribunal then analyses these general criteria and finds that they rebut the presumption of the existence of an employment contract. For the Tribunal:

• It is the will of the parties (according to the contractual terms of their collaboration) to provide independent services and to conclude an agreement in this regard;
• The freedom of the couriers to organise their working time seems not to be limited. More specifically, the system of pre-booked time slots is not a restriction on the couriers’ freedom to organise their working time;
• The freedom of the couriers to organise their work seems not to be limited either. Indeed, according to the Tribunal, couriers are free to disconnect from the platform whenever they wish and they are not obliged to accept deliveries as long as they are not connected. The courier is only bound vis-à-vis Deliveroo to carry out an order according to certain guidelines when he has accepted a specific order.

Finally, the Tribunal considers that the declarations of the couriers in the conclusion of the Labour Auditorate do not show that the platform exercised concrete hierarchical control.

Consequently, the Tribunal declares the claims of the Labour Auditorate and the couriers unfounded.

This decision was long overdue and could set a precedent in the discussion of the nature of the employment relationship in case of a sharing economy platform. The specific situation of each platform must, of course, be examined on a case-by-case basis.

Coincidentally, yesterday on 9 December the European Commission filed a proposal for a directive on the improvement of working conditions in the context of platform work. Among other things, the proposed directive contains a list of control criteria for determining whether the platform is an “employer”. If the platform meets at least two of those criteria, it is legally considered an employer. To be continued!

Action point

If you collaborate with self-employed persons, you must ensure that the concrete implementation of the self-employed collaboration does not hint at the existence of a relationship of subordination and best practices must be applied, for example, with regard to instructions, schedules, absences, evaluations, organisational charts, etc.