Labour Court rules in favour of Deliveroo couriers: classed as employees instead of self-employed workers

The Brussels Labour Court has reclassified Deliveroo couriers as employees, overturning the judgment of the French-speaking Labour Tribunal of Brussels of 8 December 2021.

In the highly informative judgment of 21 December 2023 (available on the Court's website), the Court first recalls the sharing economy regulation (which is essentially a favourable tax regime) and the interaction between this regime and the law on employment relations: "lorsque le travail de plateforme est effectué par le biais d'une plateforme numérique agréée, il faut analyser en premier lieu si toutes les conditions sont remplies pour pouvoir appliquer le régime de faveur fiscal. Si tel n’est pas le cas et qu'il s'agit d'une activité professionnelle, il faut qualifier la relation de travail sur la base de la loi-programme (I) du 27.12.2006 précitée qui est et reste le seul outil légal de qualification" ("When platform work is performed through a recognised digital platform, the first step is to examine whether all the conditions are met for the favourable tax regime to apply. If this is not the case and it concerns a professional activity, the employment relationship must be qualified on the basis of the aforementioned Programme Law (I) of 27.12.2006, this law is and remains the only legal qualification instrument.") .

The Court ruled that the conditions for applying the sharing economy regulation had not been met in the case of DELIVEROO, as the services provided through the platform (delivery of meals prepared in a restaurant or delivery of groceries):

• are excluded from the services eligible for the sharing economy regulation;
• are not provided outside the performance of a professional activity;
• are not exclusively provided to natural persons not acting in the performance of a professional activity, as they can also be provided to legal persons;
• and are not provided exclusively in the context of agreements concluded through a recognised platform, this condition requires that an agreement exists between two private individuals - the courier and the consumer - outside any professional framework.

The nature of the employment relationship between DELIVEROO and its couriers must therefore be assessed on the basis of the general and/or specific criteria set out in the Programme Law (I) of 27.12.2006 or the specific criteria set out in the Royal Decree.

After rejecting DELIVEROO's claim that it did not carry out a transport activity but an intermediary activity limited to bringing together quotations and requests, the Court examined the employment relationship between DELIVEROO and its couriers in the light of the 8 criteria applicable to the transport sector (Royal Decree of 29.10.2013). If more than half of the criteria are met, the employment relationship is presumed, until proven otherwise, to have been performed under the terms of an employment contract. The Court found that more than half of the criteria were met:

• the courier takes no financial risk, 
• the courier has no responsibility or decision-making power concerning DELIVEROO's financial resources and does not hold a certificate (or attestation) of professional competence,
• the courier has no decision-making power concerning the purchasing policy, 
• the courier has no decision-making power concerning the services to be taken into account in establishing the price, 
• the courier has no obligation of result towards DELIVEROO, 
• the courier does not have the power to hire staff, 
• the courier does not act as a company to other people,
• the courier does not work "on the premises" of DELIVEROO, but uses a bicycle (i.e. a non-motorised vehicle) that does not belong to DELIVEROO.

The employment relationship is therefore presumed, until proven otherwise, to be performed under the terms of an employment contract. 

DELIVEROO's attempts to rebut the presumption did not convince the Court, which emphasised that the way the work was organised certainly obliged the courier to provide a largely "standardised" service (in particular, the fact that the courier entered into an independent collaboration agreement; the absence of any obligation on the part of the courier to join the application; the courier's ability to choose their route and equipment; the limitation to technical and operational instructions, etc.).

This decision has important consequences in terms of labour law (rectification of overdue pay, sectoral benefits, holiday pay, etc.) as well as social security. The reclassified couriers will have to be subject to the social security system applicable to employees instead of the system applicable to self-employed workers, which means, among other things, that DELIVEROO will have to pay overdue social security contributions. The specific consequences of the reclassification have not yet been examined by the Court, which has ordered a reopening of the debates and invited the parties to present their views on these points.

However, according to press reports, DELIVEROO intends to lodge a cassation appeal against the Court's ruling, which will certainly put the rest of the proceedings on hold. To be continued...