Classification of platform workers: Belgium ahead of the forthcoming European framework

Whether people working through platforms have to be classified as employees or self-employed is a question that continues to absorb court time across Europe and beyond.

The European framework 

With the aim of addressing legal uncertainty and improving the working conditions of platform workers, the European Commission presented a Proposal for a Directive aimed at improving the working conditions of persons working through digital labour platforms (the “Proposal”) on 9 December 2021.

The centrepiece of the Commission’s Proposal is the introduction of a legal presumption of employment when certain criteria are met (see details in our previous blog posts here and here).

Legislative work on the Proposal at EU level is progressing as the Parliament and Council continue to work on their respective positions before the files enter into trilogues. However, it is not clear yet when the Proposal will be adopted nor what its final form will be. (Trilogues are informal negotiations between the European Parliament and the European Council, in which the European Commission acts as a broker to facilitate an agreement on a final text on the proposal.)

The Belgian framework 

To anticipate on the Commission’s Proposal, the Act implementing the so-called ‘Labour Deal’ in Belgium introduces a legal presumption of employment for platform workers as of 1 January 2023 (see ‘Wet houdende diverse arbeidsbepalingen van 28 november 2022’ / ‘Loi portant des dispositions diverses relatives au travail du 28 novembre 2022’, publication in the Belgian State Gazette is forthcoming). The Belgian presumption is inspired on, and thus very similar to, the Commission’s Proposal, with a number of differences which we highlight below where relevant.

Who might be caught?

The presumption will apply to persons working for “digital platforms”, which is defined broadly so as to encompass companies in a variety of sectors who: (i) provide a commercial service; (ii) at least partially through electronic means (website, mobile app, etc.); (iii) at the request of the recipient of the services, insofar as; (iv) an algorithm or similar method or technology can exert control over the work performance and/or working conditions (including remuneration).

Under this definition, ride-hailing or food delivery companies (and other platforms delivering ‘on-location’ services) may not be the only companies affected; online platforms who let people perform tasks remotely (data coding, graphic design, translation, etc.) might also be caught.

Cross-border reach? 

The Commission’s Proposal explicitly aims at catching platforms operating cross-border by making the key reference point the place where the work is physically performed, irrespective of a company’s establishment or the location of the recipient of the services. Under the Proposal, a coder working behind his computer in Belgium, performing coding activities for a UK tech based company and a UK customer, would thus also be caught.

Contrary to the Commission’s Proposal, the new Belgian provisions do not provide for a specific territorial criteria for the presumption to apply. However, pursuant to general Belgian and European law (ROME I) rules, it is likely that the reference point will generally also be the place where the work is physically performed. Digital platforms located cross-border with operations in Belgium should thus be aware of the new – far reaching – rules in Belgium.

Refutable presumption of employment 

Whether the presumption of employment applies depends on the assessment of the following list of criteria - i.e. when the digital platform:

The last five criteria in bold numbering in the table above are (almost) a copy and paste of the Commission’s proposed criteria. Under the EU Proposal, the legal presumption applies when two out of those five criteria are met.

Under the Belgian rules, the presumption will apply:

• when three out of the eight criteria are met; or
• when two out of the five criteria copied from the EU Proposal are met.

The aim of this distinction is obviously to anticipate the Commission’s proposed presumption.

Smart move or too fast? 

According to the parliamentary works of the Belgian provisions, the Belgian government wanted to move fast to give platform workers legal certainty and anticipate the forthcoming EU rules.

But the question is whether, from a legal certainty perspective, this was a smart move. Indeed, the Proposal has not yet been adopted and the European co-legislators still have diverging views on the exact outlook of the legal presumption (while some MEPs seem to favour automatic reclassifications, the Council seems to lean towards a derogation to elude the presumption to apply when criteria (iv) and (v) above (control over remuneration and appearance) are met together). Should the European legal presumption have a different shape by the time the Proposal becomes a binding Directive, Belgian classification rules for platform workers might need to be adapted again.

Mandatory accidents insurance for all platform workers

With the aim of improving the working conditions of platform workers, regardless of their classification as employee or self-employed, the new Belgian rules also provide for an obligation to subscribe to an accidents insurance for all platform workers. Failing to do so may lead to torts liability of the digital platform.

Two months to go

As the new rules are expected to enter into force as of 1 January 2023, we recommend digital platforms to (urgently): (i) assess whether the classification of their workers is compatible with the new classification rules; and to (ii) contact their accidents insurance broker.