Deliveroo judgment in Belgium: no employee status for riders, whilst the EU Commission is to reveal a draft Directive guaranteeing minimum protection

The public prosecutor initiated the case, seeking to recharacterise the professional relationship of the riders (most of them part of the ‘peer-to-peer’ system) from a self-employed to employee status. Individual couriers and representative trade unions joined the case to support the claims.

On the merits, characterising the business activity of Deliveroo as one of “transportation of goods”, the court first applied the presumption rules of the 2006 Act on the nature of professional relationships. In the transportation industry (as for construction, agriculture, security, and cleaning – known for their “low entry, low qualification” status and hence readily prone to abuse), the Government introduced a number of socio-economic tests in 2013 to assess whether a professional relationship is rightly characterised as one of self-employed nature or not. So, points like lack of financial risk, no profit sharing, use of equipment from the principal, no say in financial decisions, etc., are all presumptions for the existence of an employment relationship. In this case, the court did hold that most of such indicators were satisfied and concluded that the professional relationship of the Deliveroo couriers was therefore presumed to be an employment contract.

It then continued by assessing whether the four general criteria in the 2006 Act confirmed or contradicted such presumption. First, the parties obviously manifested their intention to conclude a services agreement outside of any employment relationship.

As to the second general criterion, the freedom to organise working time, the court held that the riders apparently were free when to connect to the ‘Deliveroo Rider’ app whenever it suits them, that the system of pre-booking did not hamper that freedom to organise working time, that once connected (and contrary to the claim of the public prosecutor) the terms of acceptance and execution of deliveries were more of an economic constraint than a legal one, that the measurement of delivery times was not used for monitoring or disciplinary reasons, and that the justification of working time (e.g. reporting to Deliveroo whenever delivery takes over 40 minutes) reflects more of a commercial objective than any authority link.

As to the third criterion (the freedom to organise the work), the court held that Deliveroo does not give any instructions as to how deliveries must be made (apart from some technical aspects), that the couriers are free to accept or refuse a specific delivery (but when accepted, the couriers must comply with certain directives), that there is no evidence that the algorithm used on the app favours certain couriers on the basis of their productivity and efficiency, that no exclusivity of services applies (they are allowed to render services to other competing businesses simultaneously), and that the GPS tracking system used aims at securing and assisting the customer rather than it being a monitoring tool.

Finally, as to the last criterion (the possibility of hierarchical control and monitoring), the court held that no evidence was produced of actual exercise of hierarchical authority. Furthermore, it found that even the claimed possibility of such authority was not proven, since any instructions given reflected the commercial needs of Deliveroo’s operations, and since the use of the GPS system mainly aimed at satisfying the customers’ needs (of following the deliveries).

The labour court, therefore, concluded that the specific socio-economic criteria that indicated a presumption of an employment relationship were overturned by the assessment of the four general criteria. Moreover, the specific regulatory extension of the employee social security system to cab drivers (to those who do not own a vehicle or whose vehicle is financed by the operator of the services) cannot be applied here since the Deliveroo riders own their own bicycles or motorcycles.

Therefore, with a 90-page, almost surgical analysis of laws and regulations applied to the particular situation of the riders, and probably quite surprisingly, the labour court ruled that the Deliveroo couriers are not employees.

This judgment follows a series of similar court cases in other EU Member States, with mixed results (as the Labour Court of Brussels notes).

It is by coincidence also coming at a time when the European Commission is to approve a draft Directive aiming at a form of minimum social protection for platform workers who are active in the collaborative, peer or gig economy, such as the Deliveroo riders.

We will come back to that development in a separate update.