Help, no two platform relationships are the same!

The society we live in would be unimaginable without the platform economy: ordering a meal, sorting out your lift to the airport, finding someone to look after your pets or getting hold of a handyman to hang up a painting – these are all examples of services where the contract is finalised via a platform.

This development is unstoppable, but it does give rise to some legal issues. On what basis is the work actually done? Is there an employment contract or is it a contract for services? The District Court in Amsterdam decided in 2018 that someone doing deliveries for Deliveroo was working on the basis of a contract for services. But on in January this year, in proceedings between FNV and Deliveroo, the same District Court held that the Deliveroo’s delivery workers were in fact working on the basis of an employment contract.

On 1 July 2019, the District Court in Amsterdam (full verdict (in Dutch) can be found here) held that there was no employment or agency contract between the platform Helpling and people who did cleaning work for third parties via this online platform.

What was this case about?

Helpling is an online platform where cleaners and housekeepers can make arrangements for doing domestic work.

The sub-district judge held that there was no employment (or agency) contract because there was no authority relationship. According to the sub-district judge, Helpling merely facilitated the performance of the work. The judge held that managing diaries, dealing with complaints and the option of blocking the cleaner’s account, offering facilities for sending out invoices and giving tips for doing particular cleaning work were not enough to indicate an authority relationship. The judge considered it relevant that the cleaner could do the work as he or she saw fit, when he or she wanted to, and was free to set his or her own hourly rates. As there was no employment or agency contract, the District Court held that the collective labour agreement for cleaning and window cleaning companies (the CAO Schoonmaak- en Glazenwassersbedrijf) was also not applicable.

But there was facilitation of the work

The District Court in Amsterdam went on to find that there might not have been any posting, but there was facilitation of work within the meaning of the Placement of Personnel by Intermediaries Act [Wet allocatie arbeidskrachten door intermediairs (“Waadi”)]. According to the court, Helpling played an active part, through its platform, in the finalisation of an employment contract between the cleaner and the client. For this reason, it was not permissible to have the cleaner pay for using Helpling’s services. Helpling accordingly had to cease this practice with effect from 1 August 2019.

The court held that the legal relationship between Helpling and the cleaner was a contract for services. Finally, the court held that there was an employment contract between the cleaners and the private individuals for whom they did domestic work and that this was covered by the Regulation on Domestic Services (in Dutch: Regeling dienstverlening aan huis). This was an employment contract with restricted rights for the employee as regards continued payment of wages on illness and dismissal.

Conclusion

There is accordingly no employment relationship between the Helpling platform and the cleaner in question, but rather a contract for services. It is also clear from this decision that one platform is not the same as another (compare Helpling with Deliveroo), and that one platform relationship is not the same as another either (compare the two Deliveroo cases). The ruling confirms that all of the circumstances of each particular case must be examined to determine whether or not there is an employment contract.

The main difference between the various platforms lies in how the service providers organise their work and the extent to which they may receive instructions on this from the online platform. The degree of authority exercised by the platform therefore appears to be decisive when it comes to deciding whether or not there is an employment contract. In short, if your platform gives clear instructions about the performance of the services, you are more likely to run the risk of a finding that there is an employment contract in place.

Anneke Pelser (ap@clintlegal.com / +31 20 820 0330)