Rules for self-employed workers
23/12/2021

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:

a. The activity must consist in a service rendered to third parties

Not fulfilled

Regarding this first condition, a difference is drawn between services to individuals and goods shipping. The court ruled that Deliveroo’s activities undeniably fell in the latter category. Hence, the activity is not a service to a third party.

b. The services must not be undertaken in the framework of a professional activity

Not fulfilled

The court considered that the activity was performed in the framework of a professional activity. At the time, Deliveroo couriers could undertake their activity either as employees via an external body or as self-employed. The court emphasised that the fact for the couriers to be able to perform that activity either as an employee/self-employed or based on the collaborative economy was questionable. The possibility to exercise the activity under the employee or self-employed status highlighted the professional nature of the activity.

c. The beneficiaries of the services may only be natural persons acting outside of any professional activity

Not fulfilled

The court stated that this condition was categorically not met as one of the beneficiaries is always a professional, namely the restaurant. Moreover, the client, when requesting a delivery, may act in the framework of his professional activity.

d. The services must be undertaken on the basis of an agreement concluded via a platform that received an accreditation

Not fulfilled

This condition entails that the service must be provided between two individuals through the platform. Although Deliveroo was awarded an accreditation, according to the court, this condition could not be met for there is no agreement between the courier and the client.

e. The allowance related to the services must be paid by or through the accredited platform

Not discussed

f. The annual turnover generated by the activity must not exceed 5,000€

Not discussed

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

a. Absence of any economic or financial risk for the worker

Criterion met

The court noted that couriers do not invest substantially personally in Deliveroo. It also observed the absence of consequences for the couriers in the event of gain or loss on the part of Deliveroo.

b. Absence, on the part of the worker, of any responsibility or decision-making power regarding the undertaking’s financial means

Criterion met

Even though couriers may attend meetings organised by Deliveroo, attendance is not compulsory and the meetings do not aim to address financial matters. Moreover, couriers do not have any responsibility in researching and bringing in new clients.

c. Absence, on the part of the worker, of any decision-making power regarding the procurement policy

Criterion met

The court stated that couriers do not have any decision-making power in Deliveroo’s procurement policy.

d. Absence, on the part of the worker, of any decision-making power concerning the price policy

Criterion met

The court deemed the criterion fulfilled for fees are unilaterally set by Deliveroo and couriers have no influence on it.

e. Absence, on the part of the worker, of an obligation to provide a determined outcome

Criterion met

The court reexplained the difference between an “obligation of result” and an “obligation of means”. The latter allowing the obligor to avoid liability if he acted as a reasonable and diligent person. According to the court, despite the appearances, the couriers face an “obligation of means”. The court underlined that couriers are not considered liable if a delivery is not achieved as intended. The couriers do not bear responsibility for any hazard.

f. Absence of possibility to hire subcontractors for the execution of the work

Criterion met and not met

A difference must be drawn between couriers active under the self-employed status and those under the collaborative economy status. The former couriers have the possibility to hire personal, without prior approval, to undertake the mission. The latter couriers may not. The court ruled the criterion fulfilled only for couriers active under the collaborative economy status.

g. Not to appear as an undertaking vis-à-vis third parties

Criterion met

The court observed that couriers are not susceptible to appear as independent undertakings for clients and restaurants are only in contact with Deliveroo or through Deliveroo without being aware of the courier’s identity.

h. To work in facilities of which the worker is not the landlord/tenant or working predominantly with a motorised vehicle not owned by the worker

Criterion not met

The court noted that couriers have their own equipment although Deliveroo sells equipment that is not mandatory.

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:

a. The parties’ will

Parties chose self-employed status

The contract signed by Deliveroo couriers clearly states that the work will be undertaken in “an independent way, free from any subordination relation”.

The fact that the couriers cannot choose the status of the working relationship – as they must accept the contract as it is or leave the job (take it or leave it) – does not have an impact for the courier freely signed and accepted the content of the agreement.

Besides, the fact that the hiring procedure involves the obligation for the candidates to fil in an application form and to be possibly interviewed does not have an impact on the legal qualification of the working relationship.

The court concluded that the parties’ will was clearly to collaborate under the self-employed status.

The parties’ will is not sufficient, by itself, to rebut the presumption. One must analyse how the working relationship was carried on in fact.

b. The freedom to organise his working schedule

Couriers are free to organise their working schedule

The freedom the organise his working schedule entails the freedom to organise his working time, his availabilities and own preferences. The court concluded that Deliveroo couriers enjoyed such freedom for the following reasons:

  • Deliveroo’s couriers are free to be connected via the application whenever it suits them. There is no obligation to be connected nor is there any mandatory schedules.
  • The following factors were considered by the court as inherent to the nature of the service and as irrelevant to demonstrate a legal subordination:
    • The fact that a courier is dependant upon the application regarding the delivery requests as the courier does not decide when he receives a delivery request, the application does. The activity is based on the delivery requests by clients. Deliveroo has no power on the number of requests made and the attribution of these requests to the couriers is based on an algorithm (having, as the main attribution criterion, geographic considerations).
    • Therefore, the courier does not master the moments where he works as he relies on the requests received from the application. A courier can only get one request at a time. Although the courier does not decide when he receives a delivery request, he is free to accept or not the request. The refusal to undertake the delivery does not lead to any sanctions whatsoever.
    • When a courier accepts a delivery request, he must perform it immediately.
  • The court underlined that the couriers’ working time is not monitored by Deliveroo.

The fact that couriers must encode the moment where the order is picked up, when the courier has arrived and when the order is delivered aims merely to inform the client and cannot be considered as monitoring the couriers’ working time.

The court noted that the number of connections to the application, the time of connection or the time spent on each delivery is not monitored by Deliveroo and is not taken into account by the algorithm dispatching the requests to the connected couriers.

c. The freedom to organise his work

Couriers are free to organise their work

The court ruled that the couriers’ freedom to organise their work was not limited by Deliveroo for the following reasons:

  • Deliveroo does not provide strict and precise instructions. It only provides suggestions in terms of itinerary or equipment or technical support.
  • The courier is free to accept or decline a delivery request. Once he has accepted the request, the obligation to deliver the order on the basis of instructions (package must be picked up and delivered within a reasonable time) cannot be considered as the exercise of a hierarchical power.
  • Moreover, the court underlined that couriers can refuse a delivery request without negative consequences, that they are free to choose their itinerary and that they can stay disconnected as long as they want.

The court refuted that the following elements were impairing the couriers’ freedom to organise their work:

  • The courier is not paid if he declines a delivery request.
  • The limited amount of time for the courier to accept or decline the delivery request.
  • The restrictions regarding the means of transport.
  • The impossibility for the courier to set his own price.
  • The GPS tracking. The tracking being used in the sole purpose to dispatch the delivery request and inform the clients on the state of the delivery.

d. The possibility to exercise a hierarchical control

There is no hierarchical control

A hierarchical control is, among others, characterised by the possibility to impose disciplinary sanctions. The court noted the absence of any exercise of a hierarchical power.

The court analysed the following aspects: compulsory instructions, possibility to sanction, evaluation of the performance, mandatory justification of absence, mandatory meetings and compulsory equipment. The court ruled that these aspects were absent in Deliveroo’s situation.

The court’s decision to exclude a hierarchical power was mainly based on the following elements:

  • The instructions from Deliveroo were of general nature. If there were precise instructions, they would directly come from the client or the restaurant.
  • The disrespect of the instructions does not lead to sanctions.
  • The geolocation tracking system is not meant for monitoring purposes.
  • The fact that Deliveroo is in charge of the billing system has no consequence.

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.

a. Effectively determining or setting upper limits for the level of remuneration

The cost for a delivery is set by Deliveroo and depends on the distance, but the couriers are free to undertake as much deliveries as they wish.

The remuneration per delivery varies based on the distance to cover. Couriers are free to accept of not the delivery and, hence, the related remuneration.

b. Requiring the person performing platform work to respect specific binding rules with regard to appearance, conduct towards the recipient of the service or performance of the work

Deliveroo does not impose a specific appearance to its couriers. The equipment sold by Deliveroo is not mandatory.

The bindings instructions given by Deliveroo seems to be of a general nature.

c. Supervising the performance of work or verifying the quality of the results of the work including by electronic means

From our understanding, Deliveroo does not supervise or monitor the couriers’ work. They do not monitor the time of each delivery. GPS tracking is not used for monitoring purposes.

d. Effectively restricting the freedom, including through sanctions, to organise one’s work, in particular the discretion to choose one’s working hours or periods of absence, to accept or to refuse tasks or to use subcontractors or substitutes

The court clearly concluded that Deliveroo couriers were free to be connected to the application at their best convenance. They are not compelled to anything in terms of working schedules.

Couriers are free to accept of decline the delivery requests. The refusal of a request does not lead to any consequences.

Deliveroo couriers may use subcontractors or substitutes.

e. Effectively restricting the possibility to build a client base or to perform work for any third party

The court observed that Deliveroo couriers were not compelled to only work with Deliveroo. They could work for a third party of building a client base.

 

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.

 

Voir aussi : Loyens & Loeff CVBA ( Mr. Kris De Schutter ,  Mrs. Lucia Bellobuono ,  Mr. François Nihoul )

[+ http://www.loyensloeff.com]

Mr. Kris De Schutter Mr. Kris De Schutter
Partner
[email protected]
Mrs. Lucia Bellobuono Mrs. Lucia Bellobuono
Attorney at law
[email protected]
Mr. François Nihoul Mr. François Nihoul
Associate
[email protected]

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