After more than two years of investigations by the Labour Prosecutor, on 8 December 2021, the Labour Tribunal of Brussels ruled that Deliveroo riders should not be qualified as employees, but rather as self-employed workers. However, they do not qualify to work under the fiscally beneficial sharing economy system.
The judgement of 8 December 2021 is the first ruling by a labour tribunal or court in Belgium, on the labour relationship qualification of workers in the platform economy and is therefore of great importance. The Labour Prosecutor began his investigations in 2017 and used a civil claim (rather than a criminal one) to request the requalification of the Deliveroo riders as employees. The Belgian social security office (NOSS) and multiple riders then joined that request as intervening parties. The significance of the verdict is also reflected in its sheer length of 91 pages.
Deliveroo first tried to get the claims rejected using a plethora of procedural arguments, which were all rejected by the labour tribunal. Two important questions were raised: a) whether Deliveroo riders can use the fiscally beneficial system for the sharing economy; and b) whether Deliveroo riders should be qualified as self-employed or as employees (with Deliveroo as employer).
I. Deliveroo cannot make use of the special system for the sharing economy
Regarding the first question, the labour tribunal states that the Deliveroo system does not comply with several conditions, which need to be fulfilled to use the sharing economy system. The sharing economy system was created to allow persons to gain some additional earnings by delivering services to other consumers (not B2B), through the platform economy. Below a certain maximum (6.390 euro per year in 2021) these services are taxed at a beneficial rate of income tax (in principle, 10,7% withholding tax, since 2021) and are not submitted to social security contributions. The labour court ruled that the system cannot be applied because the following conditions were not necessarily fulfilled by Deliveroo or its riders:
- the services can only be provided to private persons not acting in the course of their business activity, while the services are also provided to restaurants and the food can be delivered to professional clients (e.g. a business lunch).
- the services do not generate income exclusively from the delivery of goods, while the tribunal considers that the delivery of food is exactly that.
- the services are provided only within the framework of contracts concluded through the intermediary of an authorised electronic platform, while the tribunal refers to two letters of the tax administration in which it declares that Deliveroo cannot make use of the system.
This means that the Deliveroo riders using the sharing economy system will have to take the status of normal self-employed workers and, in theory, the fiscal administration and the social security office for self-employed persons could demand payment of the unpaid taxes and social security contributions.
II. There is a rebuttable presumption that Deliveroo riders are employees based on the specific sector criteria
Regarding the second question (the legal qualification of the relationship between Deliveroo and its riders), the tribunal first had to rule whether the specific criteria of the road transport and logistics sector (PC 140.03) laid down in a Royal Decree of 29 October 2013 can be used. If more than half of the criteria are fulfilled, there is a rebuttable presumption that the riders are employees and not independent workers. Deliveroo claimed that it is not a transport or logistics company and therefore does not fall under the competence of this sector. However, the tribunal stated that it is not necessary to look at all the services of Deliveroo, but only to the services rendered by the riders, which comes down to exactly the transport of goods (goods) for a third party. Deliveroo also tried to claim that the specific criteria for this sector are unconstitutional (violating the principle of equality), but the tribunal rejected the request for a preliminary question to the Constitutional court.
On the basis of the analysis of the actual work situation of the Deliveroo Riders (based on the investigations of the public prosecutor), at least 6 out of 8 specific criteria are fulfilled:
- no financial risk for the Deliveroo rider;
- no responsibility or decision power concerning the financial means of the company;
- no decision power concerning the purchase policy of the company;
- no decision power concerning the pricing or the remuneration for delivered services;
- no “obligation de résultat” (obligation of result), only an obligation of means;
- not appear as a separate company towards third persons;
- no possibility to subcontract for riders using the system of the sharing economy (+ 80%)
However, riders who are working as ‘fully self-employed’ for Deliveroo can subcontract their work. The only criterium that is fulfilled by all riders is the fact that they do not work in a building owned by Deliveroo and do not use a motorised vehicle, which they do not own or lease themselves.
As at least 6 out of 8 criteria are fulfilled, there exists a rebuttable presumption that the Deliveroo drivers are employees.
III. The presumption is rebutted by the 4 general criteria: Deliveroo riders are self-employed
However, this presumption can be rebutted by looking at the four general criteria of the Act of 27 December 2006.
- The will of the parties
The riders have signed service agreements and were aware of this fact. The fact that it was not possible for the riders to negotiate the content of these agreements does not matter according to the tribunal. Unlike the case in the Netherlands, Deliveroo has never used employment contracts in Belgium (and were also not used when riders were engaged through the intermediary company SMART before 2018). Therefore, the will of the parties indicates towards a self-employed status.
- The freedom to organise the working time
The Deliveroo riders do not have an obligation to work, nor do they have a fixed working schedule. Until April 2020 there was a system of pre-reservation of shifts. Thanks to an algorithm, Deliveroo would grant priority booking for certain riders. However, the tribunal does not think that this system had a real impact as the shifts were usually not 100% fully booked in advance. Also, the fact that the app would tell the riders how to operate and when to deliver has little impact according to the Tribunal. The system of attribution and operation is based on the algorithm called FRANK. But this system, where the nearest driver is attributed a delivery which has to be executed immediately, follows from the nature of the business itself, according to the Tribunal. Moreover, the judgement states that drivers can always refuse deliveries and stop their shifts without sanctions. Finally, according to the Tribunal, there is no actual registration of working time, nor do riders have to justify the use of their time, except in the event that an issue arises which needs to be solved.
- The freedom to organise the work
The tribunal points out that Deliveroo does not give any instruction regarding the deliveries to its riders: the itinerary is not mandatory, riders can refuse deliveries and they do not need to wear a Deliveroo uniform. The use of a GPS tracking system does not impact the freedom to organise; and neither do other elements, such as the limited choice regarding the means of transport, the unilateral price-setting by Deliveroo, etc.
- Hierarchical control
Finally, the Deliveroo riders do not receive precise instructions from Deliveroo, nor does Deliveroo have a power to sanction the riders. The contract provides for a possibility to evaluate the work of the rider, but such evaluation rarely occurs in practice. Deliveroo also denies using statistics based on the app to evaluate its riders. Moreover, riders do not have to justify their absences, nor do they have to participate in mandatory meetings. Lastly, most riders stated that Deliveroo did not control their equipment or vehicles.
Following certain arguments, including the findings of the tribunal that the instructions in the app are of a general nature, instructions that are not followed are not sanctioned, the GPS tracking system is only used for commercial means (and not to control the work), the tribunal does not think Deliveroo has the possibility to exercise a hierarchical control over the riders.
Therefore, the four general criteria point towards a status as self-employed workers.
As a bonus, the tribunal refers to other decisions regarding Deliveroo and Uber in Belgium (rulings nrs. 113 and 116 of the Administrative Commission for the qualification of the labour relationship) and beyond its borders (e.g., the cases before the Cour de Cassation in France and Gerechtshof Amsterdam). However, the tribunal points out that in each of these decisions, these procedures and/or the facts of these cases differed substantially from the case at hand.
It is still unclear whether an appeal will be lodged against this judgement. Finally, it could be questionable whether this judgement would stand if the legislative proposal of the EU Commission regarding the protection of platform workers, will effectively turn into an EU directive and will have to be transposed by the Member States, but this legislative process will continue for many years to come.
Key Action Points for Human Resources and In-house Counsel
- In the first Belgian case regarding the qualification of the employment status of platform workers, Deliveroo riders were qualified as self-employed workers;
- In case a platform would like to make use of the fiscally beneficial sharing economy system, it is important to follow the legal conditions, otherwise the platform workers can get into trouble with their taxes and social security contributions; and
- It is rather easy to rebut the legal presumption of an employment relationship (based on sector specific criteria) with the four general criteria.