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.
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:
Example (see parliamentary works Belgian Act)
may demand exclusivity;
e.g. a platform that in any way prohibits or restricts the possibility to work and/or cooperate with another client or employer operating in the same sector;
can use a geolocation system for other purposes than merely for the proper operation of basic services;
e.g. the geolocation system can be used to identify persons who are striking;
can restrict the platform worker’s freedom to determine the way the work is performed;
e.g. a courier who cannot freely choose the route or is obliged to deliver a package in a certain way, or shall report on the delivery according to a predetermined procedure and indicating the time of receipt;
can determine or set upper limits for the remuneration level, in particular by determining hourly rates, and/or restricting the right of the platform worker to refuse tasks based on the offered rate and/or by not allowing the platform worker to determine the price for the service/task;
e.g. a platform that uses an algorithm to restrict the number of trips a platform worker can accept;
can require the platform worker to respect binding rules relating to appearance, conduct towards the service recipient or performance of the work;
e.g. dress code;
can exert control over future task allocation and/or remuneration offered and/or priority through algorithmic management (broadly speaking, “algorithmic management” refers to the strategic tracking, evaluating, and managing of workers through algorithms - such algorithms take over tasks that used to be performed by human managers);
e.g. the platform can impose sanctions when performance levels are not met;
can restrict the freedom of the platform worker to organise work, including to choose working hours or absences, to accept or to refuse tasks or to use subcontractors or substitutes;
e.g. where digital platforms reward or sanction platform workers based on working time or log-in duration;
can restrict the possibility to build a client base or to perform work for any third party.
e.g. when the digital platform can prevent that the platform worker contacts the recipient of the services outside of the 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.