Platform workers: self-employed or employee?
A platform company is a digital platform to connect the customer with a performer (the working one). For example, the Deliveroo app connects a consumer to a meal deliverer and the Uber app to a driver. The platform often enters into a contract of assignment with the performer, so the performer is a self-employed worker rather than an employee. It is more advantageous for the platform to work with self-employed workers because they have less labor law protection than employees. For example, they can terminate the contract with the freelancers more easily and the obligation to continue to pay wages during illness does not apply. According to the European Commission, platform companies spend €4.5 billion more per year on social security contributions if "their" self-employed workers are classified as employees.
In the Deliveroo and Uber rulings, the courts already ruled that their workers were employees rather than self-employed. However, the Deliveroo and Uber rulings were not enough to prevent platform workers from still being wrongly classified as self-employed; a European directive was needed for that.
EU directive on platform work
The directive will soon make it easier for platform workers to prove that they are employees. Currently, a self-employed worker who believes he is actually an employee must prove this to the court. The directive changes this by introducing a legal presumption. The legal presumption means that a person is an employee if their relationship with the platform meets at least two of five indicators:
- The (maximum) fee is determined by the platform;
- The platform monitors performance (electronically);
- The platform deals with the distribution or allocation of work;
- The platform controls working conditions and restricts the choice of working hours;
- The platform limits the freedom to organize the work and gives rules about appearance or behavior.
If a person meets two or more of the above indicators, the platform must argue why the worker would indeed be self-employed. France felt that this way workers are too quickly classified as employees, so the directive includes the possibility for member states to add additional indicators in national legislation.
It also provides greater transparency of the system behind the platform (the algorithms). Platform workers are given insight into how assignments and rewards are distributed. In addition, platforms are not allowed to process certain personal data, such as the data about the platform worker's emotional or psychological state, ethnic data or political views.
The directive does not yet apply directly to the Netherlands. First, the European Parliament must formally ratify the directive, after which member states have two years to implement it.
Relevance to Dutch law
With the agreement on the directive, the European legislator is catching up with the Netherlands in regulating labor relations. The Dutch legislator has been busy for some time with the "Wetsvoorstel verduidelijking beoordeling arbeidsrelaties". The Dutch bill should ensure that zzp'ers are no longer unjustly classified as employees. The intention behind the Dutch bill and the European directive are the same, but the European directive only focuses on self-employed persons working at a platform. It is not yet clear if and when the Dutch bill will enter into force, but the European directive brings us another step closer to regulating labor relations.
