The phenomenon of platform labor has been a much discussed topic in recent years. The Amsterdam Court of Appeal is taking a fresh look at platform labor in this ruling regarding Helpling. Helpling is an online platform that briefly connects households with domestic workers (cleaners). The Amsterdam Cantonal Court ruled on July 1, 2019 that cleaners working through Helpling had an employment contract with the households they worked for and that Helpling acted as an employment intermediary in this. However, the Amsterdam Court of Appeal ruled that the cleaners have a temporary employment contract with Helpling and that the households are hirers. How did the court reach this judgment and what are the key points for practice?
At issue in these proceedings was not whether the cleaners had an employment contract, but with whom. It was established that the cleaners performed labor and were paid wages for it. However, the court still had to address who had authority over the cleaners - Helpling or the household.
First, the court addressed the possible legal relationships between the parties. The court held that Helpling presented itself to households (through its sites and FAQs) in such a way as to create the impression that there would be no employment contract between households and cleaners.
Indeed, the existing arrangements on the platform contained a number of conditions that were not compatible with labor law, which was an indication that no labor contract existed between households and cleaners. The court considered the following (conflicting) arrangements relevant for this purpose:
The agreement could be terminated without termination proceedings;
A call could be canceled without charge 24 hours in advance instead of the legal 4 days;
One household did not have to continue paying wages during illness;
A cleaner could easily be replaced;
The cleaner's salary would also include sick pay and vacation days, which is not allowed.
Next, the court ruled that Helpling had considerable influence over the contractual relationship between households and cleaners. In practice, the terms and conditions of employment were governed by the general terms and conditions drawn up by Helpling and the rates charged by the cleaners were controlled by Helpling through recommended prices and price suggestions. In doing so, Helpling also had an interest, because a higher rate meant a higher percentage markup of the commission.
Moreover, Helpling obliged the households and cleaners to make all (wage) payments through Helpling's chosen payment service called Stripe. Helpling also prepared the (draft) invoices for the cleaners. Such interference by a third party (Helpling) in the contractual relationship between the parties was, according to the court, difficult to reconcile with an employment contract between the households and cleaners.
The court ruled that with all of the above, Helpling's role within the contractual relationship(s) is such that there is formal authority over the cleaners. Thus, the agreement between Helpling and the cleaners meets all the requirements of an employment contract (labor, wages and authority). However, there is no 'ordinary' employment contract.
Management and supervision lies with the households and the households are also the party giving instructions. Thus, material authority lies with the households. The court ruled that this is characteristic of a temporary employment contract and that this method of posting fulfills all the requirements for a temporary employment contract. Thus, Helpling is a staffing company, the cleaners temporary workers and the households hirers.
As a result of the court's ruling, all cleaners have a temporary employment contract with Helpling. As a result, the cleaners can now also approach Helpling with their claims about, for example, back wages (up to, in principle, 5 years back (3:307 BW)).
Waadi
Now that there is a temporary employment contract, the Waadi applies. As a result, Helpling may not (any longer) impede the direct employment of a cleaner in the household. The court ruled the fine charged by Helpling against this as unlawful. Any fines already paid can probably be reclaimed by households from Helpling.
This ruling represents another setback for companies working through an online platform. The likelihood of an employment contract when working through a platform is high. Therefore, the future for platform companies is uncertain.
