The ‘gig’ economy is radically changing 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.

In a similar way 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 designation corresponds to the actual circumstances of service provision. If there are sufficient elements in the way the relationship is carried out that are incompatible with the designation 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; it considered that the collaboration did not have the characteristics of a self-employed relationship, but of 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 ruled on the matter, until now.

The Labour Auditorate (the body responsible for carrying out labour-related tasks on behalf of the Public Prosecutor’s Office) lodged a case before the Labour Tribunal of Brussels, after having investigated the working conditions of Deliveroo couriers for more than two years to establish infringements of regulations specific to employees, and in particular of regulations governing social security for employees.

Several couriers joined the case (since, like the Auditorate, they considered that they should be considered employees of the platform), demanding the application of the labour law provisions, including the application of wage scales, reimbursement of expenses, and compliance with the collective bargaining agreements concluded in the ‘Transport and Logistics’ Joint Committees (140 and 140.03), among others.

The Tribunal concluded that there is no reason to reclassify the employment relationship between Deliveroo and the couriers as an employment contract. The Labour Tribunal also ruled on the application of the favourable gig economy tax regime, 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 considered that the relationship between the couriers and Deliveroo falls within the scope of ‘freight transport’ activity 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 eight socio-economic criteria, including 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 purchasing policy; the absence of any possibility of employing personnel to perform the agreed work; and working with a vehicle not owned by the worker.

The Labour Tribunal presumed 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 four general criteria which serve to determine the nature of an employment relationship. These criteria are: the will of the parties; freedom in the organisation of working time; freedom in the organisation of work; and the existence of hierarchical control.

The Tribunal analysed these general criteria and found 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) for the courier to provide independent services and to conclude an agreement to this effect.
• The freedom of 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 couriers’ freedom 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. A courier is only bound to carry out an order according to certain guidelines when s/he has accepted a specific order.
• Finally, the Tribunal considered that the couriers’ declarations in the Labour Auditorate’s conclusions do not show that the platform exercised concrete hierarchical control.

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

This decision could set a precedent in discussions on the nature of the employment relationship in gig economy platforms. The specific situation of each platform must, of course, be examined on a case-by-case basis.

Coincidentally, on 9 December, the European Commission filed a proposal for a directive on improving 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 (see here). To be continued!