Law No. 13/2023, which came into effect in May 2023, marked a significant shift in the presumption of an employment contract within digital platforms. Adding Article 12-A to the Labor Code introduced new considerations, sparking questions. One of the critical queries was the practical criteria that courts would employ to assess the presumption of a contract in the context of a digital platform.
In this regard, let’s remember that the Labor Code, after the 2023 amendments, provided for the following points as criteria for the presumption of an employment contract in the context of digital platforms:
- the setting by the platform of the remuneration (or its minimum and maximum limits) for the work carried out on the platform;
- the power of direction exercised by the digital platform, which determines the specific rules for the provision of the activity;
- the control and supervision of the provision of the activity by the digital platform;
- the reduction of the autonomy of the activity provider by the digital platform about the organization of their work, their working hours, absences and similar issues;
- labour powers exercised by the digital platform over the activity provider;
- ownership of work equipment and tools by the digital platform.
Then, on February 1, 2024, the first sentence of the Lisbon Labour Court appeared, which recognized an employment relationship with an UberEats courier, proving that the courier received false green receipts and should, therefore, have an open-ended employment contract with that company, with retroactive effect to May 1, 2023. Later, on March 19, 2024, the Castelo Branco Labour Court recognized the same for four UberEats couriers. However, while in the first case, the Defendant (the employer) was not heard, in the second case, this has already happened. However, even so, the court did not favour anything from the employer, as it considered Uber Eats had to rebut the presumption of employment, i.e., it failed to prove that the couriers worked independently.
About proof of an employment contract, in the first case, five of the six indications of the existence of an employment contract provided for in Article 12A(1) of Law 13/2023 were confirmed, while in the second, only three were proven.
The court rulings underscored that the work performed on digital platforms was not genuinely independent despite the appearance of what could have been more delivery services. The evidence showed that the digital platform exerted control over the courier’s activity, limiting their ability to accept or reject tasks, imposing a schedule, and determining remuneration. As per the court, this control indicated the existence of an employment contract, not an independent contractor relationship.
Unless companies adapt quickly, it is legitimate to expect further action on this matter, considering that the Working Conditions Authority has already made 1133 notifications and 861 reports to the Public Prosecutor’s Office to recognize the existence of an employment contract. This new reality promotes greater security and a more favourable situation for the workers concerned. The existence of an employment contract guarantees them more rights, particularly regarding vacation and Christmas bonuses, as well as the prohibition of unfair dismissal, minimum remuneration, limits on regular working hours, and protection in the event of accidents at work and occupational illnesses.
The content of this information does not constitute any specific legal advice; the latter can only be given when faced with a specific case. Please contact us for any further clarification or information deemed necessary in what concerns the application of the law.