The European Courts and the Employment Relationship
Research points to a trend among European courts to classify digital platform workers as employees or a similar category
Case Law on the Classification of Digital Platform Workers in European Countries
At the end of 2021, the European Commission introduced a comprehensive proposal for a Directiveto regulate platform work in its 27 member states.
The initiative was supported by research from various fields. In the field of law, Christina Hiessl, professor of labor law at the Catholic University of Leuven (Belgium), was responsible for researching the decisions of the courts in the region.
At the time, Hiessl's research analyzed more than 100 (one hundred) court decisions and 15 (fifteen) administrative decisions from European countries and concluded that there was a tendency for courts to reject the classification that various platforms made of their workers as self-employed, recognizing an employment relationship or a similar category.
The European Commission's proposed directive was concerned with the high number of lawsuits involving digital platforms and drew on Hiessl's research to highlight the need to prevent a deterioration in labor legislation and working conditions.
Recently, after a long negotiation process, the European Union directive was approved, becoming the most comprehensive regulation of platform work.
Updated in February 2024, Christina Hiessl's research, published in Platform Work: Regulation or Deregulation?, analyzes more than 800 judicial and administrative decisions in 18 (eighteen) European countries on the issue of employment relationships in various platform-based jobs and in the so-called gig economy, and continues to point to a trend toward reclassifying workers as employees of platforms or as a similar category.
What Hiessl indicates is that, in 267 cases, workers were considered employees of digital platform companies, while in 109 cases, they were also classified as employees, but of subcontracted companies. In a smaller number of cases, 88, they were classified as self-employed, in 38 cases as intermediate workers, i.e., between employee and self-employed, in 11 cases as temporary agency workers, and in two cases as employees of the clients who used the platforms.
Decisions of High Courts in Europe
In Hiessl's research, considering only cases strictly related to platforms (thus excluding cases related to the gig economy in general), eight countries have decisions from higher courts:
Spain:
In the courts of last resort, Spain has the highest number of decisions, especially since the Supreme Court's strong stance on a food delivery company in September 2020. There are eight rulings recognizing the employment relationship of workers in the food delivery sector through platforms. In private transportation managed by apps, two rulings recognized drivers as employees of a subcontracted company. In parcel delivery, five decisions indicated workers as employees of subcontractors or temporary employment agencies, and one as employees of the platform (see pp. 106-118 of Work on Platforms: Regulation or Deregulation?).
France:
In France, in November 2018, the Cour de Cassation recognized the employment relationship in the food delivery sector that uses digital platforms; and, in March 2020, it issued an important ruling recognizing a driver in the private transportation sector as an employee. Although the issue has not been settled in the country, since then, two other decisions by the Cour de Cassation have recognized the employment relationship in the food delivery sector, and five other decisions have done so in the private transportation sector. In addition, the Court also ruled on one worker from a platform that offers mystery shopping services, classifying him as self-employed (see pp. 61-77 of Platform Work: Regulation or Deregulation?).
Switzerland:
In May 2022, the Federal Court recognized the employment relationship in a case concerning the food delivery sector (2C_575/2020) and in another concerning the private platform-based transport sector (2C_34/2021). In 2023, four other decisions by the Federal Court also recognized the employment relationship in the private transportation sector (9C_70/2022, 9C_76/2022, 9C_71/2022, 9C_75/2022) (see pp. 124-129 of Platform Work: Regulation or Deregulation?).
Netherlands:
In 2023, the Hoge Raad issued two rulings recognizing the employment relationship in the food delivery sector (ECLI: NL: HR: 2023:443; ECLI:NL:HR:2023:1610) (see pp. 94-98 of Platform Work: Regulation or Deregulation?).
Germany:
In January 2020, the Federal Labor Court recognized a worker on a mystery shopping platform as an employee (9 AZR 102/2020) (see pp. 77-80 of Work on Platforms: Regulation or Deregulation?).
Italy:
In January 2020, the Corte di Cassazione used the category of “lavoro eteroorganizzato” [hetero-organized work] to grant a set of rights to workers in the food delivery sector (RG n. 11629/2019) (see pp. 87-91 of Platform Work: Regulation or Deregulation?).
United Kingdom:
In 2018, the Supreme Court used the intermediate category of workers to grant a set of rights to a group of drivers in the platform-based private transport sector ([2021] UKSC 5). In 2023, on the other hand, it classified workers in the platform-based food delivery sector as self-employed ([2023] UKSC 43) (see pp. 131-138 of Platform Work: Regulation or Deregulation?).
Hungary:
In Hungary, in December 2023, the Kúria ruled that delivery drivers working for a food delivery platform were self-employed (Mfv.VIII.10.091/2023/7) (see pp. 82–84 of Platform Work: Regulation or Deregulation?).
Thus, of the 39 decisions by higher courts, 27 (twenty-seven) recognized the employment relationship with the platforms; in 7 (seven), the workers were considered employees of third parties (subcontracted or employed by a temporary employment agency); in two (2) intermediate categories between self-employed and employees (worker and lavoro eteroorganizzato) were indicated; and in three (3) decisions, platform workers were considered self-employed.