We wrote about this topic earlier. Online platforms, such as Amazon or Uber are a way of bringing together supply and demand for labour. There has long been debate about whether platform workers are either employees or self-employed persons. What implications does this have for platform workers and what developments can we expect?
An online platform is a business that brings together customers and providers of a particular service or product through a digital application or website. Think, for example, of Uber, Helpling or Deliveroo. In doing so, online platforms use technology, such as algorithms and other data, to match supply and demand.
The working relationship between online platform and platform workers can be qualified in different ways. For instance, the working relationship can have characteristics of both an employment contract and an assignment contract. An employment contract exists if the elements of labour, salary and authority are met. It is mainly the element of authority that distinguishes an employment contract from an assignment contract.
The question in platform work is therefore mainly whether there is authority and/or whether the platform worker has entrepreneurial freedom. If it is established that the platform worker is an employee, there may then also be ambiguity as to who, e.g. the platform or the client, is the employer.
Platform workers usually have no obligation to work and can often be replaced by someone else. Furthermore, it is true that the platforms do set the rates and, with the help of algorithms, have the ability to control and direct the work intensively.
The outcome of the question of whether the relationship between platform worker and the platform qualifies as an employment agreement or a contract of assignment has major consequences for the working relationship between the parties. After all, having an employment contract provides employment law protection, access to social security law and pension law, among other things, and also has tax implications. For platforms, therefore, it is in many cases more attractive to hire platform workers as self-employed rather than entering into an employment contract with them. Although platforms explicitly state that there is an assignment agreement, the actual performance by the parties often gives a different impression.
In recent years, there have been a number of important rulings on whether platform workers should be considered employees.
However, there remains ambiguity and thus legal uncertainty for platform workers.
The European Commission recently presented a proposal to give platform workers better protection and more security. Under the proposed EU directive, platform workers are only self-employed if a maximum of one of the following five criteria applies to them:
- The platform determines pay;
- The platform sets appearance requirements. For example, the worker must wear a uniform, bag or cap with the platform's imprint or logo;
- The platform monitors by digital means, especially through an algorithm, the worker's performance or the quality of output;
- The platform determines working hours, i.e. how long and when someone works;
- The platform limits the worker's ability to work for others.
A platform-worker who faces at least two of these five criteria is employed by the platform as a worker and must therefore be treated as such under the laws of the country where the company is based.
What is also special about this EU proposal is the reverse burden of proof. Not the platform worker has to prove that he is an employee, but the platform company has to prove that the platform worker is self-employed.
This can only be done by proving that at least four of the five criteria mentioned do not apply to the platform worker.
Would you like to know more about this topic or about when there is an employment contract and when there is an assignment contract (self-employment)? The employment lawyers at SPEE advocaten & mediation will be happy to assist you!