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Gig working, platform companies and the future

A global perspective from CMS Employment Lawyers in 16 countries

State authorities and courts are weighing in on the power of the Gig Economy: What will the outcome be? 

Few forms of employment have impacted the modern economies of the western world as profoundly as Gig work and platform services. Platform companies such as Uber in transportation, Uber Eats in food retail, Airbnb and Couchsurfing in accommodation, PeoplePerHour in online freelancing, and countless others have attracted millions of workers internationally to serve customers in almost every major service sector of the global economy. According to the European Commission, around 11 percent of the workforce in the EU has now worked over a platform at least once. Competitively priced and easy to access for both workers and customers, platform services have grown exponentially in popularity, which has prompted the courts, politicians and state authorities of some countries to take a closer look at their impact. 

Despite or perhaps because of the rapid spread of these flexible forms of work, major issues and legal questions remain unresolved, including the perception that Gig work fosters precarious employment relationships with no protection in the event of illness or a fluctuating workload. In late February 2021, the UK Supreme Court ruled that British Uber drivers were not freelancers, as many Gig workers consider themselves, but actual company employees. 

This ruling prompted the EU's European Commission to launch a consultation to determine whether Gig workers should be considered employees of the platforms they are affiliated with. In this article, CMS employment law experts from 16 jurisdictions to analyse the legal implications of platform work in their home countries.

Central to the question of how improvements and harmonisation can be implemented is the legal assessment of platform work. If a platform worker qualifies as an employee, this in many countries means continued payment of remuneration in the event of illness, comprehensive occupational health and safety provisions, protection against dismissal, social security coverage, etc. The classification of platform work must be made after weighing a wide variety of indicators in each individual case. It is therefore not possible to make blanket statements about specific fields of activity. In fact, numerous professions can be performed either on a self-employed basis or through dependent employment. In individual jurisdictions, these questions are answered in a similar way, but can vary in detail, as our article shows.

Select a jurisdiction

AustriaBelgiumChile
ColombiaCroatiaFrance
GermanyItalyKenya
PolandSerbiaSlovenia
SpainSwitzerlandTurkey
Ukraine  

 

Austria

Are platform workers treated as employees?

Austria has not yet passed a law addressing the key questions surrounding platform workers. According of Daniela Krömer of CMS Austria, whether a platform worker is classified as an employee or independent contractor depends on the "usual criteria defining the dependent work of an employee", including:

Behavioral control (e.g. the instructions the worker receives regarding when and where to perform his duties); Disciplinary authority; The personal dependency the worker enjoys; The operating resources the worker is required to provide. 

  • Behavioral control (e.g. the instructions the worker receives regarding when and where to perform his duties); 
  • Disciplinary authority; 
  • The personal dependency the worker enjoys;
  • The operating resources the worker is required to provide. 

"The classification of platform workers as independent workers has wide reaching consequences," explains CMS expert Krömer, "because most employee protection regulations are not applicable to them." Furthermore, says Krömer, a works council would not represent these workers and there is no applicable Collective Bargaining Agreement. 

What changes do you anticipate? 

In general, Krömer states that Austrian courts tend towards "employee-friendly jurisprudence", and adds: "Since there are no plans for or drafts of a law on platform work, Austria is likely to see rulings similar to the UK Supreme Court's Uber ruling, which classifies platform workers as employees."

Pressure is slowly mounting for other changes. A renowned Austrian professor submitted a draft law that tackles the issues related to platform work and offers a rebuttable presumption for the existence of an employment contract. If such a law were passed, this would result in a reversal of the burden of proof by which the platform company would have to rebut the presumption of an employee's status. 

Currently, despite this submission, there is no political will to pass such a law.

Can platform companies make rulings like the UK decision work in their favour?

According to CMS expert Krömer, the answer to this question is: it depends on the company's perspective. "If platform workers are correctly classified according to the relevant criteria, either as employees or independent contractors", she explains, "this will result in higher costs through fees to a worker’s council and higher wages. But it will also create fair and transparent working conditions for employees." In short, if a platform worker law is passed, lawmakers must get it right. "A misclassification of platform workers could draw serious and expensive consequences for a platform company", she says.

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Belgium 

Are platform workers treated as employees?

In Belgium, platform workers are not assigned a specific legal status under labour law, says Sophie Berg of CMS Belgium. "These workers can fall", says Berg, "either under the status of employee or self-employed. The status they eventually fall under depends on the contractual qualifications in the contract between the worker and the platform company".

According to CMS labour expert Claire Geraci, these qualifications do not correspond to the actual performance of the contract. In the event of a dispute, the disputing party would need to demonstrate incompatibility with the qualifications on the basis of four general points: 

  • The will of the parties as expressed in their agreement as it corresponds with its execution;
  • The freedom to organise working time;
  • The freedom to organise work; and 
  • The possibility of exercising hierarchical control. 

Geraci states that "the above points, which must be applied on a case-by-case basis, indicate the existence or absence of legal subordination, which takes precedence over socio-economic subordination". In a sector of specific risk such as transport, however, Geraci states that "socio-economic criteria constitute a presumption rebuttable" based on these four general points. 

At this stage, Belgian courts have not given a definitive ruling on the issue of the status of platform workers. As result, says Berg, the status of self-employed workers can be defended for the present based on these criteria.

What changes do you anticipate? 

No major legislative changes are currently under discussion in Belgium. This, however, may not be the case for long. Members of the Belgian government have called for the status of platform workers to be clarified.

In addition, a number of proceedings have been launched vis-à-vis the status of independent workers associated with platform companies. As a result, Belgian jurisdictions are expected to rule on the status of these workers on the basis of their contractual qualifications and the four legal criteria mentioned above. 

Can platform companies make rulings like the UK decision work in their favour?

It depends, considering there are only two statuses under Belgian labour law. According to CMS experts, the decisions of the Belgian jurisdictions will give platforms either an incentive or a disincentive to continue their current business model, modify their models, or withdraw from the relevant market. 

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Chile 

Are platform workers treated as employees?

In Chile, platform drivers are not treated as regular employees. "Instead," explains employment partner Enzo Canales with CMS Chile, "they are considered freelancers, mainly because they are able to choose when, where, or how long they want to provide their services." 

Being considered freelancers rather than regular employees makes a relevant difference to these workers, Canales states, since labour legislation does not apply to them, and as a result platform companies do not withhold taxes or social security payments. In addition, these companies can terminate their contracts at any time, without cause and without severance payments.

What changes do you anticipate? 

"This situation is not expected to last for long", says Canales, "since several Labour Courts in Chile have already declared the existence of an employment relationship between transport platform companies and their drivers". In addition, the Chilean Congress is considering several bills that classify platform "drivers" as regular employees. States Canales, "all indications are that Chile is likely to follow the path of the UK in this situation".

Can platform companies make rulings like the UK decision work in their favour?

Yes, says Canales. "Even if such a law is passed, platform companies have the unique opportunity to get ahead of these changes by innovating within the new employment structures. Currently, the companies are taking part of the discussions over these bills in Congress".

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Colombia 

Are platform workers treated as employees?

Currently, Colombian law does not treat platform workers as employees. According to Adriana Escobar, an employment partner with CMS Colombia, there are three main criteria for a labour relationship to exist between a worker and company. If all three criteria are not met, "the labour relation doesn’t exist", she says. 

These requirements include: 

  • The employee must comply with agreed-upon working hours;  
  • The employer must give the worker the tools necessary to carry out operations; and 
  • The worker must receive the same or a similar salary per month as remuneration for work done.

"Platform workers do not meet these conditions", says CMS's Escobar, "because they manage their time, they own their tools and their remuneration depends upon on the amount of work done. Given the fact that they do not comply with a specific work schedule".

What changes do you anticipate? 

New legislation, Law 1174 (2020), has been introduced in Colombia that anticipates social security system contributions for platform workers according to hours worked. In the scaled social protections found in this law, a flexible system has been created whereby contributions can be paid by the day or by the hour. According to Sandra Mora, a labour-law specialist with CMS Colombia, "this allows platform workers enough flexibility to use the protection system. The new law reflects the fact that the criteria is changing as the labour legal system transforms and is able to regulate the new ways of work emerging in our changing society". 

Can platform companies make rulings like the UK decision work in their favour?

Yes, says Escobar. "These regulatory changes allow platform workers to have social security protection, for contingencies related to sickness or old age. 

Mora adds that "Colombia will likely adopt new regulations that will help us adapt to the needs that these new ways of work will introduce, so that rules are compatible with the economic realities of our country".

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Croatia

Are platform workers treated as employees?

In Croatia, as in many countries, the question as to whether platform workers should be considered the employees of platform companies is a hot topic.

However, Mia Kalajdžić, employment law expert in Croatia, admits that there is no simple answer. "Generally speaking," explains Kalajdžić, "if a company enters into a service agreement with a worker, for tasks which an employment contract should be entered into according to the nature and type of work typical for employment, then an employment contract will be deemed to exist unless the company can prove otherwise". In short, the law is not specific when it comes to what is considered the “nature and type of work typical for employment.” According to Kalajdžić, "this is to be assessed on a case-by-case basis". 

In the practice, however, an employment relationship is more likely to exist in the following cases:

  •  If the service contract contains provisions typical for employment, such as an unlimited timeframe for completing the work, remuneration paid on the basis of time worked (not on the work performed), and working hours are defined and vacation periods are paid for;
  • If the company exercises a certain amount of authority over the work, such as defining the exact scope and time of work, the work is performed in the company’s premises, and the company provides equipment and resources for the work.

Most platform companies in Croatia fall outside these definitions. "These companies usually opt for engaging platform workers instead of employing them," says Kalajdžić, "and the differences include lower taxes and social security contributions and the absence of employment-related obligations”.

What changes do you anticipate? 

In light of court decisions recently reached in other countries and the growing trend by the Croatian state to view workers as employees, more and more platform workers are likely to be classified as employees of platform companies in the future. 

Can platform companies make rulings like the UK decision work in their favour?

Certain initiatives have recently been launched to define this topic more clearly and define the criteria for employment more explicitly, says Kalajdžić. As a result of these initiatives "both platform workers and companies will know what to expect and can evaluate potential risks", she says. 

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France

Are platform workers treated as employees? 

Yes, thanks to a French Supreme Court decision, platform workers may enjoy employee status. According to Caroline Froger-Michon, a co-head of the CMS Global Employment Group, we start having more and more case law on platform workers after years of examining this question. 

Froger-Michon says that there have been "reoccurring" attempts to qualify the relationship between platform companies and platform workers. "French law basically provides for two types of status," she explains, "either there is an employment relationship between parties, or the individual works as an independent worker". 

According to French case-law, no matter what name is given to a contract, an employment relationship is based on the existence of a "subordination link", says Froger-Michon, which is "characterised by the employer’s power to give orders and instructions, to supervise the performance of employees and to sanction the employee". In addition, in this situation employees do not bear the economic risk of the business.

Platform workers, she says, were mainly considered self-employed workers and benefit from a presumption of non-salaried employment. 

"But based on the criteria stated above and a close analysis of the actual facts", explains Froger-Michon, "the French Supreme Court, on several occasions, reclassified relationships between platforms and individuals as employment contracts, by granting employee status to some delivery staff and to some drivers of platform companies". 

What changes do you anticipate?

Changes are already underway, according to Madeleine Benistan, a labour specialist with CMS France, who states that on 2 December 2020, the former President of the employment section of the Supreme Court issued a report for the attention of the Prime Minister on the “regulation of digital working platforms”. 

Benistan says the report suggests the use of a third-party intermediary for platform workers, which would be their employer. "This status would be mandatory only after a minimum period of activity and subject to a minimum revenue," says Benistan. "If this triangular relationship is implemented, platform workers could benefit from an employee status with no direct link of subordination to the platform". 

Can platform companies make rulings like the UK decision work in their favour?

The system suggested in the report submitted to the Prime Minister would benefit platform companies, it would substantially reduce the risk of reclassification of the relationship into an employment relationship. 

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Germany

Are platform workers treated as employees?

As is often the case, the answer to this question is, it depends, states employment law expert Markus Meißner with CMS Germany. However, a judgment by the German Federal Employment Court (German Federal Employment Court of 1 December 2020 - 9 AZR 102/20) has increased the risk of platform workers being classified as employees.

In general, the following applies: pursuant to section 611a (1) sentence 1 German Civil Code (BGB), an employee is anyone who, on the basis of a contract under private law, is employed in the service of another to perform work subject to instructions and determined by another person in such a way that there is "personal dependence".

CMS's Anja Schöder states that in the case of platform workers, this depends on the specific structure of the platform and centres of the following question: does the principal or company control the collaboration in such a way that the platform worker is not free to determine the place, time and content of his activities? 

In its decision of 1 December 2020, the German Federal Employment Court affirmed that platform workers have employee status. According to CMS's Amelie Schäfer, the court cited the following factors: 

  • The platform worker was bound by tight regulations concerning the time and content of their activities; and
  • There was an incentive system, which encouraged continuous work whereby the platform worker, through regular work, earned "experience points", which gave them access to several and better jobs.

Unfortunately, these criteria can be applied to other cases.

The differences that concern the classification of someone as an employee rather than someone who is working solo and self-employed currently include the continued payment of wages in the event of illness and on holidays, the obligation to pay social security contributions and protection against dismissal.

What changes do you anticipate? 

The Federal Ministry of Labour and Social Affairs has produced the key issues paper "Fair Work in the Platform Economy", which according Meißner provides for specific measures to improve the legal position of platform workers. 

The Federal Ministry of Labour and Social Affairs is targeting platforms, which actively have an influence on the configuration and implementation of contracts. The focus is not on pure brokerage platforms and operators of online market places.

The intention is to make it easier for platform workers to assert employee status in court by shifting the burden of proof. As a result, platform workers who qualify as independent self-employed workers are to be given access to employment and social protection "mechanisms" including:

  • Introducing minimum notice periods and protective regulations under employment law, such as continued payment of wages in the case of illness, regulations on maternity protection and leave; 
  • Including statutory pension insurance and financial participation of the platforms in the costs of retirement pensions; and
  • Giving platform workers the opportunity to organise under collective law and jointly negotiate the fundamental terms and conditions of the work with the platforms.

Can platform companies make rulings like the UK decision work in their favour?

The planned amendments are intended to strengthen the rights of platform workers, says Meißner of CMS Germany. Although the amendments initially look disadvantageous for platform companies, says Koschker, they may take some of the pressure off the public debate on the protection of platform workers. In addition, platform workers may also have less incentive to claim that there is an employment relationship in the first place.

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Italy

Are platform workers treated as employees?

Since 2019, Italian law has considered workers operating through platforms to be employees if certain criteria are met. According to Federico Pisani, an employment law expert with CMS Italy, these requirements include the following: 

  • The activity should be carried out in a "predominantly" personal and continuous manner; 
  • The activity is 'organised' by the company; and
  • There are no constraints on the duration of the work or where it is carried out.

If these requirements are not met, CMS's Pisani states that Italian law still provides minimum protections, but only for workers, classified as "riders", who carry out delivery services in urban areas using two-wheeled vehicles. According to the law, companies can forge agreements with these "riders" that include the following: a written form of contract; minimum pay; protection against discrimination; protection of their personal data; and compulsory insurance coverage against occupational accidents and diseases.

What changes do you anticipate? 

"Italian case-law has taken a slightly different approach on classifying delivery drivers", says Pisani. "Although some courts are inclined to treat drivers as employees, the majority of judgments still consider them 'para-subordinates', which means quasi-independent contractors". According to this second perspective, he explains, riders would receive only some of the protections afforded to regular employees.

As a result, independent unions of platform workers are already trying to negotiate working conditions for their members, even if classified as self-employed. "At the moment", says Pisani, "the application of collective agreements of this type is disputed".

Can platform companies make rulings like the UK decision work in their favour?

In the light of the most recent rulings of the Italian courts, Pisani suggests that companies adopt the contractual formula of “coordinated and continuous collaborations” (i.e. co.co.co.) for these drivers. This arrangement will reduce litigation risks, prevent employers from having to bear the costs and legal consequences of employment, and ensure contracts with reliable cost estimates.

But what is the situation for platform workers other than riders? "Since these workers have not received the same media and judicial attention as riders," says Pisani, "each will need to be assessed on a case-by-case basis to arrive at the best contract to apply". This includes determining whether and in what way their activity is continuous, organised or controlled by the company. 

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Kenya

Are platform workers treated as employees? 

Because Kenya's current employment legislation was enacted 14 years ago, long before the arrival of the "Gig economy", its laws view employment in the traditional sense: casual, fixed-term, permanent and pensionable and probationary contracts. 

"Platform workers," explains Collette Akwana, a labour law specialist with CMS Kenya, "are therefore not treated as employees because their contracts of engagement do not fall under any of the categories of contracts mentioned in our Employment Act".

According to Akwana, because they have no certain terms of engagement to classify them as employees as defined by the Employment Act, "platform workers are not treated as employees, but as the self-employed". 

The employer-employee relationship as stated in Kenya law is one in which the employer maintains some level of control over the employee, such as time, exclusivity of skill, or working hours. "These very aspects, which employers exercise as rights over employees, cannot be found in a Gig economy with platform workers", CMS expert Akwana explains. "Platform workers control when they work, how often, how long and, here in Kenya, whom they provide a service to. They exercise the authority that – under a regular employment contract – would be the preserve of the employer." 

As in other countries, the differences between regular employees and platform workers are, says Akwana, "like day and night". "Take for instance a cab driver employed in regular cab company," she explains. "He would only be required to turn up for work and perform contractual tasks. A platform driver will need to ensure that he procures all the necessary licenses for operating his cab and meeting the operational costs for running his 'gig'".

What changes do you anticipate? 

Legislative changes are not anticipated in Kenya, but experts see a shift on the horizon concerning the relationship between platform companies and Gig workers. 

In the past, platform workers have been given certain "leeway", but Akwana anticipates that platform companies will seek to hold back on some of the flexible and non-committal aspects of the “gig relationship”. "In short", says CMS's Akwana, "this will make it more difficult for platform workers to work for more than one company", which is an issue in Kenya where a platform worker in a taxi business can be enrolled as a driver in more than five platform companies. Depending on the time of day (e.g. peak hours), and location (e.g. airports and eateries), drivers can switch to those platforms whose fares and commission margins are more favourable at that time.

Can platform companies make rulings like the UK decision work in their favour?

Legislation and court decisions are not anticipated, but platform companies in Kenya can act to bring more order to the sector. CMS expert Akwana says that these companies could adopt "a fixed-term employment contract with express working terms and conditions, compensable on a commission basis, subject to statutory deductions applicable to regular employees". 

"I think that platform companies can make this work in their favour because if they control the workers' time and commission targets, they will essentially have their cake and eat it too," she says.

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Poland

Are platform workers treated as employees?

In Poland, platform workers are not treated as employees of either the platform or the application provider, says Ewa Roguszczak, an employment expert with CMS Poland. Instead, these workers have the "status of independent contractors" that are hired directly or indirectly by the platform. 

According to Roguszczak, the main criterion for qualification as an employee who is protected by Polish Labour Code provisions is "subordination to the employer". "This means," says Roguszczak, "that the employee has to follow the employer’s orders and directives." In particular, the employee must work at the times and location the employer specifies. Additionally, the employee should perform this work continuously and personally with no rights of substitution. 

"These criteria are assessed and based on the actual performance of a contract, rather than on its wording", says Roguszczak. "In other words, in case of a dispute, a Polish labour court would not focus solely on interpretation of the provisions of the contract, but it would analyse how in reality the work was done." 

In short, Polish law – different from other jurisdictions like the UK – does not recognise the 'worker concept' or any other middle category between an employee and a contractor. A platform worker can be either a regular employee or an independent contractor. 

What changes do you anticipate? 

There are animated debates in the media about platform work and employee rights, Roguszczak says. 

Still, the Polish parliament is taking no direct actions in this matter. Moreover, there is no Polish case-law on the topic. "For the foreseeable future," says CMS's Roguszczak, "it seems that Poland will likely follow any future regulations on platform workers created by the EU, instead of taking the initiative on its own".

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Serbia

Are platform workers treated as employees or not? What are the criteria? What are the differences between regular employees and platform workers currently?

"To our knowledge, platform companies do not treat platform workers as employees," explains Ksenija Ivetić Marlović, a labour-law expert with CMS Serbia, "mainly because these companies view their role as hi-tech 'matchmakers' and technology enablers between service providers and their customers". In general, to perform a business activity in Serbia one must be registered as an entrepreneur. Some Serbian platform companies explicitly require this type of registration in their invitation to join the platform, while others do not. Also, concluding a service agreement between a platform company and a worker may not be an option pursuant to the Labour Code.

What changes do you anticipate? How will/should criteria change?

At the moment freelancers are generally subject to the scrutiny of Serbian tax authorities because until recently the IT industry relied heavily on freelancers engaged under service contracts, even for the performance of the core business activities. "This approach contradicted Labour Law and was damaging to the state budget," says Ivetić Marlović. As a result of this tech industry controversy, significant changes were made to tax legislation in the first quarter of 2020, such as the introduction of the Freelancer Independence Test. In some instances, freelance IT experts who failed the test became full employees of the companies they had serviced. As a result, the test prompted some IT companies to reconsider their business models.

To date, platform workers have not been subject to this kind of scrutiny. Given that freelancers were scrutinised, however, it is possible that platform workers will fall under this scrutiny in the future unless the legal framework surrounding the gig economy is improved. As the legislation is now configured, in the worst-case scenario tax inspectors might apply the substance-over-form rule and argue that platform workers are in fact employees who should enjoy employee rights and have taxes withheld from their fees by platform companies.  

Can platform companies make these changes work in their favour?

We recommend that platform companies work with the government and the gig ecosystem to improve the regulatory framework. Such cooperation would create certainty for both platform companies and workers and establish a fair taxation system within the gig economy. Added CMS's Ivetić Marlović: "To be successful, however, a new legal framework would need to be tailored to balance the interests of gig workers, gig companies and the state".

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Slovenia

Are platform workers treated as employees? 

The position of Slovenian labour law vis-à-vis platform workers is unclear, say experts. According to Amela Žrt, a labour law specialist with CMS Slovenia, for a platform worker to be treated as an employee, such relationships "would need to be judged on a case-by-case basis and would depend on the set-up of the specific platform". 

The status of platform workers in Slovenia depends on whether their work includes “elements of the employment relationship" as defined in the Employment Relationship Act. According to CMS's Žrt, these elements include the following:

  • The worker has integrated voluntarily into the employer’s working process and the working process is organised; 
  • The worker obtains remuneration for this work; 
  • The worker continuously carries out this work;
  • The worker carries out work in person; and
  • The worker carries out duties according to the instructions of the employer and is subject to the supervision of the employer.

"If these elements are present", explains CMS expert Žrt, "the relationship between the platform and the worker could be reclassified as an employment relationship". In fact, says Žrt, Slovenian case-law has developed several criteria for establishing whether these elements are present, which includes the following questions: 

Does the company provide the working resources
Where is the work performed
Is there a schedule and do workers have to report absences in advance? 
Is the work is carried out in an equal manner and to the same extent by employed workers? 

According to Žrt, these considerations do not specifically apply to platform workers, but to any forms of work that represent a hidden employment relationship. 

What changes do you anticipate? 

As platform work grows, the Slovenia labour inspectorate is expected to try to exercise more control over it "by analysing the carrying out of platform work from the hidden employment relationship perspective", says Žrt. 

Other prominent employment law experts have stipulated that a statutory solution would be welcome. Such a statutory solution could include an amendment to the Employment Relationship Act or the adoption of a new special act, which "would regulate the particularities of platform work, including defining a statutory presumption on the existence of employment relationship between the platform and the worker, with the possibility to challenge this presumption".

Can platform companies make rulings like the UK decision work in their favour?

Adoption of an act regulating platform work could also work in favour of platform companies. "A defined legal frame offers the platform companies clear rules, boundaries, and knowledge of associated risks," Žrt explains. "Without regulation, the platform companies are left to case-by-case assessments whether their relationships with platform workers constitute employment relationships or not. "A defined legal frame would offer more legal certainty for all the parties involved".

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Spain

Are platform workers treated as employees?

Spanish law does not include specific rules regulating platform workers, which means – explains CMS Spain employment counsel Eva Ceca de las Heras – that platform workers can be hired as normal employees or self-employed.

Normally, platform workers in Spain are hired as self-employed under services contracts, but starting in 2017 these workers began petitioning the Spanish Labour Courts to recognise their status as normal employees.

As a result, says Ceca de las Heras, "there were many decisions from the High Courts of Justice of several regions declaring the condition of these workers as normal employees and a smaller number of decisions declaring their condition as self-employed".

Finally in September 2020, the Spanish Supreme Court issued a ruling, stating that an employment relationship existed between the platform company Glovo and one of its workers providing services as a 'rider'. Although this decision is a relevant precedent that will probably be followed in future court cases, CMS's Ceca de las Heras says that each case needs to be analysed individually to determine whether or not the relevant platform worker actually renders services as a normal employee under the organisation and control of the company.

What changes do you anticipate?

"In the absence of a specific regulation on this matter", she Ceca de las Heras, "platform companies were looking for alternatives, such as subcontracting fleet companies, operating with cooperative businesses of self-employed or redefining their operating models to remove any traces of an employment relationship".

However, the Spanish government has already reached an agreement with the unions and the employer’s association on the “Rider Law”, which will recognise 'riders' with transport and delivery platforms as default normal employees.

Likewise, companies will be obliged to inform employee representatives of the rules regulating the algorithm that may affect employment conditions.

The “Rider Law” is expected to be published in the coming days and will go into force three months after publication.

Can platform companies make rulings like the UK decision work in their favour?

Even if the “Rider Law” is passed, explains Ceca de las Heras, platform companies may still be able to hire platform workers as self-employed workers if they are able to provide proof against the legal presumption that they actually render services independently and with autonomy, and will assume the risks of self-employed workers.

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Switzerland

Are platform workers treated as employees? 

Under Swiss law, the question whether someone is an independent contractor or an employee is based on "factual circumstances rather than on the wording of a written contract", say Christian Gersbach and Miryam Meile, labour law specialists with CMS Switzerland. Furthermore, because there is no clear main criterion for such assessment (the decision is based on an overall assessment of the relationship between the parties), the key elements are marked bolded in the bullet points below. 

When determining the nature of the contractual relationship, the following points are seen as a strong indication for a contractor relationship:

  • The contractor is a registered company, offering its services to the public; 
  • The contractor has other clients, a homepage and promotes its services to the public through advertisements, etc.;
  • The contractor has considerable freedom when determining when, where and how to perform its services;
  •  The services provided are of limited duration or irregular nature. 

The following points are seen as indications for an employment relationship:

  • The person works exclusively for the client (or almost exclusively);
  • The person is integrated in the hierarchy of the company (e.g. receives instructions from and gives instructions to employees);
  • The person must follow clear and detailed instructions as to when, where and how he should perform his services (i.e. there is clear subordination);
  • The services are provided for a considerable period of time and with certain regularity (i.e. the person works a fixed amount of days each month);
  • The person is registered in the commercial register for the company;
  • The person is mentioned on the company website;
  • The person has business cards with the name and logo of the client;
  • The person has an office at the company's working premises;
  • The person has an email address with the company;
  • The person identifies himself as a company employee on social networks and registries such as LinkedIn;
  • The person receives benefits or enters into commitments usually associated with an employment relationship (e.g. bonus, vacation, post-contractual non-compete undertakings).

Explains CMS's Meile: "Based on general Swiss employment and social security principles and confirmed by recent case law, there usually is a high risk that platform workers are qualified as employees". Meile cites a recent case involving the platform company Uber where the judges of the Vaud Cantonal Court ruled that drivers should be considered employees of the platform because the structure of the platform makes the driver dependent on the company. 

What changes do you anticipate? 

According to Meile, no legislative changes are being considered, and the criteria listed above are expected to remain for the foreseeable future. 

Can platform companies make rulings like the UK decision work in their favour?

Platform companies can protect themselves from liability and rulings such as the one issued by the Vaud Cantonal Court by carefully structuring their relationship with workers based on the legal criteria outlined above. "By doing this", says Gersbach, "platform companies can avoid future qualification".

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Turkey

Are platform workers treated as employees? 

In Turkey, whether an individual qualifies as an employee depends on whether this individual is taking instructions from an employer for the fulfilment of his work. In this situation, states Counsel and employment law expert Sinan Abra with CMS Turkey, "an employee is considered to have a loyalty obligation towards an employer, takes and is bound by instructions from it, and is obligated to devote his entire attention to this work".

This is different, says Abra, than an individual who performs work for an employer "without being strictly bound by the instructions of that employer" and could theoretically work for numerous employers. In this case, this worker would not fall under the scope of the Turkish Labour Law, states Abra. "The relationship between this individual and the employer would be considered to be a 'freelancer' relationship," he says, "and would be regulated by the terms of the Turkish Code of Obligations".

As for protections under the law, Abra states that an employee benefits from salary protection, minimum wage, employment security provisions, such as the right to ask for reinstatement, and a minimum amount of paid leave.

A freelancer, says Abra, does not benefit from any of these legal protections and is free to terminate his contract based on its terms. In addition, a freelancer does not have a pre-determined amount of paid leave. 

What changes do you anticipate?

According to CMS expert Abra, legislative or judicial changes are not expected. "Turkish courts are already very protective of employees" says Abra, "and have qualified a freelancer relationship as an employment relationship in certain cases in order to grant a worker additional labour-law protection".

One change, however, which may occur in Turkish labour law are amendments to the legal regime governing definite-term employment agreements. Currently, such agreements may only be executed under certain circumstances. (Otherwise, these agreements would be considered of an indefinite term from the date of execution). 

Can platform companies make rulings like the UK decision work in their favour?

If this legislative reform takes place, this would be good news for platform companies. "The government initially proposed making definite term employment agreements more common but this proposal was then shelved due to resistance from labour unions", explains CMS expert Abra. "If this law is de-shelved and enacted, platform companies will be able to engage employees on a definite term basis more easily".

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Ukraine

Are platform workers treated as employees? 

In Ukraine, platform workers are rarely employed, explains Oleksandra Prysiazhniuk of CMS Ukraine, but are usually "engaged under civil-law contracts as service providers". In this situation, Prysiazhniuk says platform workers do not enjoy the rights and benefits of regular employees, such as paid vacations, social benefits, and protection against immediate dismissal.

Currently, companies in other business sectors often engage personnel on the basis of civil law agreements, says Prysiazhniuk. 

What changes do you anticipate? 

The Ukrainian government has recently proposed changes to employment laws to reduce undeclared work. According to CMS's Prysiazhniuk, these proposals recognise any work as being performed under an employment agreement, irrespective of the type of contract (and even a civil law agreement), if the agreement contains the following features:

  • An individual performs work according to a specific qualification or profession under the control of a person for whose interests the work is performed;
  • The company provides the production means (e.g. vehicles, fuel) to the individual;
  • There is systematic payment to the individual in cash or in kind;
  • The company regulates the individual's working hours and vacation time.

If adopted by parliament, these proposed legislative changes could affect platform companies since civil law contracts with the platform workers could be re-qualified into employment agreements. 

"In this case, the platform workers would be eligible to enjoy the same rights and privileges as employees," Prysiazhniuk says. "In addition, the platform companies will have to bear additional tax and social-security burdens".

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It was a pleasure working on the article with a group of lawyers taking special interest in the gig industry. Should you want to get in touch with us, drop an email at [email protected]

 

Authors

Portrait of Daniela Krömer
Daniela Krömer
Attorney-at-Law for Labour Law and EU Law
Vienna
Portrait of Sophie Berg
Sophie Berg
Partner
Brussels
Portrait of Claire Geraci
Claire Geraci
Associate
Brussels
Portrait of Enzo Canales
Enzo Canales
Partner
Santiago
Portrait of Adriana Escobar
Adriana Escobar
Partner
Bogotá
Portrait of Sandra Mora
Sandra Mora
Senior Associate
Bogotá
Portrait of Mia Kalajdžić
Mia Kalajdžić
Attorney-at-Law
Zagreb
Portrait of Caroline Froger-Michon
Caroline Froger-Michon
Partner
Paris
Portrait of Madeleine Bénistan
Madeleine Bénistan
Associate
Paris
Portrait of Markus Meißner
Dr. Markus Meißner
Senior Associate
Stuttgart
Portrait of Anja Schöder
Dr. Anja Schöder, LL.M. (University of Edinburgh)
Counsel
Leipzig
Portrait of Amelie Schäfer
Amelie Schäfer
Partner
Duesseldorf
Portrait of Federico Pisani
Federico Pisani
Associate
Rome
Portrait of Collette Akwana
Collette Akwana
Associate
Mombasa
Ewa Roguszczak
Portrait of Amela Žrt
Amela Žrt
Attorney-at-law
Ljubljana
Portrait of Eva Ceca
Eva Ceca
Counsel
Madrid
Portrait of Christian Gersbach
Christian Gersbach, LL.M.
Partner
Zurich
Portrait of Miryam Meile
Dr Miryam Meile
Associate
Zurich
Portrait of Oleksandra Prysiazhniuk
Oleksandra Prysiazhniuk
Senior Associate
Kyiv (CMS RRH)
Portrait of Ksenija Ivetić Marlović
Ksenija Ivetić Marlović
Attorney-at-Law
Belgrade
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