Thijs Dalmolen, 7 August 2024

Temper workers are not temporary workers but freelancers

In recent years, there has been much to do about platform labour. Deliveroo, Helping, Uber: there has been regular litigation about how the legal relationship between these companies and the people working there should be qualified. Is it an employment contract, a flexible employment contract or should we speak of freelancing? Last month, the Amsterdam District Court made another dig at the proverbial issue by ruling that people who perform labour through Temper are freelancers. It is a remarkable ruling that seems to deviate from previous platform jurisprudence.

Temper is an online platform, on which users can take on (in many cases) one-off jobs. Examples include work as a barista, warehouse worker or cook. These jobs are offered on a digital noticeboard. About 100,000 people in the Netherlands have worked at least once via Temper.

When someone takes on a job, a model assignment contract is automatically concluded. However, according to trade unions FNV and CNV, this is a sham construction: there would be no freelancing, but a flexible employment contract. This is a relevant distinction, because in the first scenario Temper does not have to pay social security contributions. In the case of a flexible employment contract, employees are insured and also build up pension.

How does it work?

A worker creates an account on Temper. The first job takes the form of a trial. If workers subsequently want to take on more jobs, they must have a VAT number. Sometimes Temper also requires a worker to register in the trade register of the Chamber of Commerce. Furthermore, Temper offers workers the option of insurance. The party that placed the job on Temper receives an overview of the applications and may decide which worker(s) to invite. Via an external agency, invoices are prepared after the job is completed.

The criteria of Deliveroo

The subdistrict court assessed this construction using the Deliveroo criteria set by the Supreme Court: ECLI:NL:HR:2023:443, Supreme Court, 21/02090. On this basis, the court ruled that the bar of a flexible employment contract was not met.

Thereby, the authority relationship is an important issue in this case. This component is generally regarded as the most distinguishing criterion in qualifying an employment contract. According to the subdistrict court, in the construction made by Temper, there is no question of authority on the part of Temper, which plays no role in the work instructions in the actual work. In fact, that role lies with the contractor, who also determines the working hours. Temper applies some preconditions, but they are too thin for an authority relationship. The lack of authority is an important counter-indication that there could be a temporary employment contract.

Regarding the remuneration of employees, the court reached a similar verdict. In a temporary employment contract, wages are paid by the employment agency. In contrast, workers at Temper invoice clients, who then pay the workers directly. It is therefore completely outside Temper.

Nor is the nature and duration of work a strong distinguishing criterion in the case of Temper. For that, the work is too different in nature. These range from working in the warehouse to cooking in a restaurant. Moreover, it is rare for a worker to do more than two jobs at the same job. Importantly, workers at Temper are also not obliged to perform the work in person. Without Temper’s permission, they can be replaced by someone else.

Matter of weighing

The ruling is striking, but fits the picture of judges ruling differently on this type of platform work. For example, there was (the now bankrupt) Helping. This was an online platform on which cleaners could offer themselves available for work. Households could then select who they wanted to have cleaned their homes. According to the subdistrict court, this was an employment contract; however, the Court of Appeal saw this as a flexible employment agency. In addition, A-G De Bock concluded again earlier this year that Helpling cannot be qualified as a flexible employment agency and therefore, by definition, there cannot be a flexible employment contract.

It is striking that the subdistrict court in the Temper ruling – unlike in Helpling – mainly zooms in on the construction set up by Temper and not on how the construction works out in practice. After all, Temper could be said to be doing exactly what defines a flexible employment contract: bringing together demand and labour, which is performed under the hirer’s authority.

The fact that FNV and CNV are appealing is therefore no surprise. That, combined with the fact that the Dutch Tax Authority will start enforcing false self-employment again from 1 January 2025, means that there is an interesting future ahead in the field of platform labour. To be continued.

Questions?