Presumption of an employment contract in the context of a digital platform

The expansion and success of digital platforms lead to constant contact with these – alleged – workers, not only through their platform but also in sharing road access.

Until now, access to these professions was generally relatively straightforward, with only a valid driving licence, the relevant vehicle and registration on the suitable platform(s) being required.

With the success of this new profession, the legislator also considered it necessary to regulate this activity, categorising, in some instances, these legal relationships as employment relationships, which materialised through the addition of Article 12a to the Labour Code.

Thus, in line with Article 12 of the Labour Code, which provides for the presumption of the existence of an employment contract upon verification of some of the indications in paragraph 1 of this article, the legislator has now provided for a similar legal presumption through Article 12-A of the Labour Code, specific to the activity provided within the scope of a digital platform, providing, for this purpose, six particular indications. These are: the setting of remuneration for the work performed on the platform or the establishment of maximum and maximum limits of income; the exercise of the platform’s power of direction over the worker, and the consequent establishment of specific rules and rules of conduct; the control and supervision by the platform of the provision of the worker’s activity; the restriction by the platform of the worker’s autonomy regarding the organisation of work; and the exercise by the platform of labour powers, such as disciplinary power over the worker.

As provided for in Article 12, Article 12a also states that this list of indications of employment is not cumulative and that the verification of some of them is sufficient to presume the existence of an employment contract.

In turn, the digital platform may rebut this presumption by proving the autonomy of the activity provider and the absence of labour powers and/or claiming that the activity is provided before a natural or legal person acting as an intermediary of the platform. In the latter case, or if the activity provider claims that the employment relationship exists but with the platform intermediary, it will be up to the court to determine, in case, who acts as the employer.

Suppose the existence of an employment contract is proven, as in the case of actions to recognise the presence of an employment contract. In that case, the new employee will be entitled to receive labour credits resulting from the existence of this subordinate relationship, such as, for example, holiday and Christmas allowances, compensation for overtime work and compensation for termination of the employment contract.

In this context, the digital platform or the respective intermediary (depending on who is considered the employer by the court), the individual managers, administrators or directors and also the companies that are in a reciprocal participation, control or group relationship with them will be jointly and severally liable for the payment of these credits, the respective social charges and the expense of the fine arising from the practice of a labour administrative offence.

Given the new legislation already in force, the question arises as to how the large digital platforms will adapt to these new rules, given the burdens arising from the assumption of an employment relationship, and considering the large number of employees that many, until now, registered, as well as the respective intermediaries. Likewise, in the context of the activity provided by digital platforms, it is necessary to analyse the characteristics to which the court will pay attention to determine the existence of autonomy of the activity provider and the ease (or difficulty) with which this presumption can be rebutted.

Undoubtedly, access to labour rights previously closed to this new type of worker is a positive change. However, as mentioned above, given the increase in burdens and costs that this change will bring to the respective employers, many of these former employees may lose their jobs, which raises the question of whether the legislator intends, predominantly, to safeguard the fragile socio-economic situation in which many of these activity providers find themselves, or, on the contrary, to protect State and Social Security revenues.