Is self-employed labour through platforms still possible?
Uber and Helpling. Arranging a taxi with the ease of an app, or providing yourself with domestic help with just as much ease. It sounds like both might have little to do with each other. Yet they were both in the Dutch news last weeks for the same reason.
Why? Because the judge ruled that the people who offered their services through these apps are employees of the platforms. With all the consequences this entails.
What’s the story here?
In dit geval gaat het om ‘platformarbeid’. We spreken van platformarbeid als werk wordt verricht voor een andere partij, waarbij een (digitaal)
In this case, it concerns ‘platform labour’. We can speak of platform labour when work is performed for another party, whereby a (digital) platform takes care of the mediation between the worker and the party for whom the work is performed.
Although the concept of platform work may not be familiar to everyone, there is a good chance that you have used a digital platform for services or products. Think of companies such as Thuisbezorgd, Delivero, Uber(Eats), Bol.com, Booking.com or AirBnB.
What is the deal with platform work?
When you buy a product from a platform, it is not very interesting from a labour law perspective. However, it does become interesting when using these platforms to have somebody provide some form of service.. Because in that case, the question arises in what legal capacity the worker offers his services. Does he do that as a self-employed person, as a contractor, or as an employee of the platform?
At Uber and Helpling they were of the thought they were just ‘bringing supply and demand together’. However, the court ruled differently. At Uber, the taxi drivers are employees. So are Helpling’s, and more precise, the labour relation is qualified as one through a temporary employment contract. Therefore Helpling must also comply with the rules that apply to temporary workers.
How the judge came to this ruling? It has to do with when an agreement qualifies as an labour agreement according to the Dutch law. It can be qualified as such, if authority, remuneration and work are factually present.
Authority in the case of platform work: different from normal, but present
Often, the question of whether or not there is a labour agreement is about how much authority the party for whom the work is performed has. It is remarkable that in both Uber and Helpling the judge found that this authority is sufficiently present, but in a different form than the ‘classic’ one.
In the case of Uber, according to the court, there was talk of ‘modern employer’s authority’.
Drivers have to agree to the terms and conditions of Uber before they are granted access to the Uber platform. And with changes too, because otherwise they were not allowed access to the app. Uber drivers could refuse offered rides, but too high of a refusal rate could cause access to the Uber app to be blocked.
The algorithm of the Uber app therefore has quite some authority. So much so, that the judge ruled that there is an employment contract.
In the case of Helpling, according to the court, there was no question of ‘normal’ authority between Helpling and the cleaner himself. For example, it was normally the household where the cleaner worked that in fact judged whether the work had been done properly.
Nevertheless, according to the court, there was an employee relationship with Helpling. Because, although there was no question of ‘normal authority’, the court ruled that Helpling had subcontracted this authority to the household, and that partly for this reason there was a temporary employment contract between Helping and the cleaner. In other words: Helpling is an employment agency, and the cleaner a temporary worker!
Both court judgments make it clear that as an entrepreneur it is important to think carefully in advance about all the people who perform work on behalf of or for your company. Make sure you are not faced with surprises, for example because you want to hire a self-employed person, but this person suddenly turns out to be an employee from a legal point of view.
Drawing up contracts?
Do you have questions about drawing up the right contracts for hiring staff? Then be sure to contact us! We will be happy to help you.erder,
mr. S. (Stefan) Klein
Legal Counsel (present: mo. to fr.)
+31(0)15 820 00 53