Rules for self-employed workers
The status of platform workers and its recent developments: where do we stand? The requalification of workers is not an easy matter, especially with the emergence of the digital economy and platforms such as Deliveroo, Uber, etc. At the end of this year, the debate on the workers' social status is open.
On 8 December 2021, the Brussels Labour Lower Court issued a judgement related to the status of Deliveroo couriers.
The court ruled that, given the circumstances of the case, the couriers must be considered as self-employed and cannot be qualified as employees neither can they benefit from the specific status based on the “collaborative economy”.
The day following the judgment, 9 December 2021, the European Commission issued a draft legislation to ensure, under certain conditions, the employee status to platform workers.
This brings a lot of changes and new elements. What impact does it have for you? What is it for you too? In the first section, find 10 basic takeaways to avoid requalification for all self-employed workers.
Afterwards, we will analyse why the court did not consider Deliveroo’s activities to be part of the "collaborative economy" and the reasons why the court considered them to be self-employed and not employees. We will then also analyse the potential impact of future European legislation in this area.
1. Golden rules and takeaways
(1) Give instructions on the result, not on the way to achieve that result.
(2) Plan meetings with workers but no working schedules.
(3) Avoid making working tools available to the worker.
(4) Do not monitor working time.
(5) No time sheets except for billing purposes.
(6) Do not control the worker’s work method.
(7) Ban disciplinary sanctions.
(8) Ban exclusivity clauses.
(9) Clearly confirm self-employed status in the contract.
(10) Include clauses that guarantee the independent status in the contract.
2. Judgement of the Brussels Labour Court
2.1. The "collaborative economy"
Some Deliveroo workers exercise their activities under the social status provided for in the law on the collaborative economy.
The “programme-act” of 1 July 2016 aimed to create a specific fiscal, social and administrative status for workers that are active in the collaborative economy. For that status to apply, five cumulative conditions must be met.
As the four first conditions set out hereafter were not met, the court ruled that Deliveroo couriers could not rely on the collaborative economy status:
Consequently, the couriers that were exercising their activity under that status would be requalified.
2.2. Couriers: Employees or self-employed?
Some Deliveroo workers exercise their activity under self-employed status. The court therefore analysed whether they were self-employed or employees.
2.2.1 The presumption of employee status, the specific criteria and the general criteria
Deliveroo’s activities were qualified, by the court, as activities of goods shipping for third parties. More specifically, the court stated that Deliveroo’s activities were to be considered as being part of the road transport and logistic sector. For that specific sector, it exists a presumption of employee status in the event where more than half of the criteria set out in a Royal Decree are met. This presumption is rebuttable. The analysis of these criteria is addressed in the section 2.2.2.
However, the court stated that the criteria embodied in the Royal Decree relate essentially to an economic subordination. It is clear from the case law, and from the Cour de Cassation’s judgements, that an economic dependence does not necessarily exclude the status of self-employed.
The main characteristic of the employee status is the legal subordination – not the economic one. Therefore, in a second step, the court analysed the four general criteria to determine whether a legal subordination exists. In the event where a legal subordination does not exist, the presumption shall be rebutted. The analysis of these criteria is addressed in section 2.2.3.
2.2.2 Analysis of the specific criteria
Based on the court’s scrutiny, at least 6 criteria are met (7 for the couriers active under the collaborative economy status). Hence, as provided for in the 2006 programme-act, the couriers are presumed to work under an employee status. Yet, the court underlined that the presumption is rebuttable.
The court undertook the analysis of the four general criteria in order to verify whether the presumption is rebutted or not.
2.2.3 The general criteria and their analysis
In order to assess the existence of a legal subordination, there exist four general criteria:
The court stated that the presumption set on the basis of the Royal Decree must be considered as rebutted. Indeed, based on the four general criteria, it appears that the couriers cannot be considered as enjoying employee status.
3. The EU draft directive
To improve working conditions on digital platforms work, the European Commission has proposed the adoption of a set of measures.
It considers that the status of these workers depends on the working conditions applied on a case-by-case basis on digital platforms.
The text is only a draft directive issued by the commission and must still be adopted through the lengthy legislative procedure between the Council of the EU and the European Parliament. Yet, it might be interesting to discuss its potential consequences. Hereafter, we analyse the potential impact of this piece of legislation, criterion by criterion, based on the judgement of 8 December 2021.
If two of these criteria are met, the relationship is presumed to be an employment relationship. The presumption is rebuttable.
If this draft directive comes into force, what would happen to Deliveroo and similar companies?
It seems difficult to assess whether less than two of the criteria would be met. More information would be needed, and the outcome shall depend on the judge’s interpretation of the criteria and of the facts.
Kris De SchutterPartner Attorney at law
Kris De Schutter is partner in and chairman of the Employment & Benefits practice group in Belgium. He has over 18 years all-round experience in collective and individual employment law, with a particular focus on transformation, especially from a holistic view linked to alternative (flexible) remuneration, restructurings and change processes.T: +32 2 700 10 13 E: [email protected]
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