Recently, colleague Annemiek Poortman wrote a column for Flexnieuws on working via digital platforms:
Recently, the question has been coming before the courts more often: is there an employment contract when using a digital platform to connect employees with customers?
In the Uber ruling of 13 September 2021 , the District Court ruled that it is. There, drivers were deemed to be working under an employment contract with Uber. A week later, the Amsterdam Court of Appeal again focused on the question of how to qualify working through online platform Helpling, which brings together supply and demand for cleaning services. Do the cleaners have an employment or agency contract? And if so with whom?
To speak of an employment contract (Section 7:610 of the Civil Code), three conditions must be met. The employee performs (personal) work against payment of wages and under the authority of the employer. In short: work, pay and authority. The Supreme Court ruled in the X/Amsterdam judgment in November 2020 that an agreement is deemed to be an employment contract if the content of the contract meets the legal description of an employment contract. The intention of the parties plays no role in this qualification.
A temporary employment contract is also an employment contract (7:690 BW), but a special one. It involves a triangular relationship in which the employee is made available by the employer to a third party (the hirer) in the course of the employer's business to perform work there under the authority of that third party.
Helpling provides an online platform where cleaners can offer themselves and where households can search for a cleaner suitable for them. Helpling has a small role in the selection of the cleaner by checking the identity details of the cleaner. The final selection of the cleaner is done by the household based on the established profile and the cleaner's rate.
In the first instance, the subdistrict court held that no employment or agency contract existed between the cleaners and Helping. However, an employment contract did exist between the cleaners and the households. The Amsterdam Court of Appeal now puts a line through that and assesses the relationship between the cleaners and Helping as a temporary employment contract under Section 7:690 of the Civil Code. Let us take a closer look at that assessment based on the three elements of labour, wages and authority.
The court finds that the work is performed personally by the cleaner for the benefit of the household. Helpling has no insight into whether the work is performed and/or in what manner. This complicates the qualification of an employment contract with Helpling as it lacks direct authority and does not appear to exercise a material employer role.
Helpling also had little say in setting the level of pay. While it did set a lower limit on the rate and advised the cleaners on the rate, the final level was set - with a large degree of freedom - by the household and the cleaner. Again, this point still argues for an employment contract between the households and the cleaner.
What is important in this matter, however, is that the remuneration is not paid directly from households to the cleaner, but a payment platform mandated by Helpling must be used for this purpose. Helpling receives a percentage of the remuneration. The fact that payment is not made directly, but through Helpling, detracts from the qualification employment contract between cleaner and household.
The question whether there is a relationship of authority is still the most characteristic criterion in distinguishing between an employment contract and another employment relationship. As such, it is decisive in determining whether there is an 'employee', 'temporary worker' or (for example) a self-employed person without staff (zzp-er). In fact, it plays a key role in the assessment. As mentioned, Helpling has no influence or management and supervision of labour on the shop floor. That lies entirely with the households. They determine the work, the cleaning materials and the working methods. On the other hand, the Court does seem to attribute the formal employer role to Helpling. Payment (of regular wages) is made in a manner prescribed by Helpling. The formal relationship of authority, i.e. the way in which a cleaner's work on behalf of a household is commercially embedded, is thus largely determined by Helpling. The Court further mentions that Helpling does not encourage households to take on an employer role. No wages are paid by the households in case of illness, or a transition payment in case of departure.
In qualifying this relationship, the court considered that there is labour: namely, the cleaning work performed by the cleaners. Furthermore, authority is exercised over the cleaners: there is direct supervision by the household and there is formal authority by Helping. Also, wages are paid. This fulfils the requirements of an 'employment contract'. However, the court ruled that there is no ordinary employment contract between Helping and the cleaners because the workers are structurally made available to hirers. Thereby, it is unusual for an employment contract that the employer does not have any insight into the work performed by its employee. In addition, the work always takes place under the supervision and management of a hirer. The provision of cleaners takes place in the context of Helpling's business operations. The cleaners are made available by Helpling to perform work at households through an assignment from those households to Helpling. This satisfies the legal requirements applicable to the existence of a temporary employment contract (7:690 of the Civil Code).
On the other hand, the Court rules that Helping's working method is not compatible with an employment contract between the cleaners and households. While there is labour and authority, the cleaners are paid through the payment service prescribed by Helping. Also, not having to continue paying in case of illness and being able to easily change cleaners for the households indicate that there is no employment contract between the cleaners and the households. Incidentally, one might then ask whether this does not then qualify as a form of payrolling. However, this qualification does not apply to Helpling. A characteristic of payroll is the absence of the allocation function, which in Helpling's case can actually be called characteristic. After all, they bring supply and demand together on behalf of the company by means of a digital platform.
The Helpling ruling is in line with the recent ruling of the subdistrict court which ruled that an employment contract exists between drivers working through Uber's digital platform and Uber. Helpling and Uber both operate an online platform that brings together supply and demand for a particular service. In that context, it is notable that Uber's drivers are working under an employment contract while Helpling's cleaners are working under a temporary employment contract.
The decisive difference is that in Helpling, management and supervision lies with the households, a third party in the sense of an employment contract, and on the other hand, payment is made via Helpling. In Uber, the employer authority is precisely attributed to Uber now that it can exercise control and authority over drivers through an app and associated algorithm. Today's technology-dominated age allows for a more indirect (often digital) controlling interpretation of the criterion of authority. Workers have become more independent and perform their work at more variable (self-selected) times. It is considered that the relationship between Uber and its drivers involves this "modern" authority relationship.
Although there are caveats to the Court's assessment in the Helpling ruling, we can see from these rulings that the future for platform work seems to be becoming less flexible. Therefore, the last word does not seem to have been said on labour relations when using digital platforms.
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