The bicycle courier: employee or self-employed?
Soon to be more secure as a platform worker?
Platform workers are individuals who perform work or provide services through a digital work platform, think Deliveroo couriers or Uber cab drivers. Anno 2022, more than 28 million people in the European Union work for such an online work platform.
Within Belgian labor law, the debate rages on whether platform employees have self-employed status or employee status within the meaning of the Employment Contracts Act.
For now, neither legislation nor case law provides sufficient clarity on this issue. Consequently, there is a lot of legal uncertainty on this issue.
EU Draft Directive - European Commission
The European Commission wants to provide better protection and more securities for platform workers in order to prevent abuse and exploitation of platform workers. To this end, a new directive has been proposed.
Under the proposed directive, people who work for an online platform will only qualify as self-employed if at most one of the five proposed criteria applies to them.
Those criteria are as follows:
- the platform determines the reward;
- 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 performance of the working or the quality of the output;
- the platform determines working hours, that is, how long and when someone works;
- the platform limits the ability of the worker to work for others.
Individuals who answer positively to at least two of these five criteria must qualify as employees and are employed by the digital work platform. They will have to be treated as employees, entitling them to regular working conditions such as minimum wages, paid vacation, pension accrual, insurance, etc.
Burden of proof
The EU draft directive also reverses the burden of proof. It is no longer the platform worker who has to prove that he is employed, but the platform company that has to prove that the worker is truly self-employed. Consequently, the platform company will have to prove that at least four of the five criteria above do not apply to the person in question.
Not cheering too soon
The directive is obviously a proposal, which must first be discussed and approved by the European Parliament and the Council. If the directive then receives the required approval, Belgium and the other European member states then have two years to transpose it into national law.
Currently, neither European nor Belgian law provides any clarity regarding the status of the platform worker. The future will show how the legislator or case law will deal with this legal uncertainty.
Would you like more information about platform worker status or to be assisted by a specialized lawyer? Then feel free to contact us at info@bannister.be or by calling 03/369.28.00.
