How did the Brussels Labour Court of Appeal classify Deliveroo couriers?

The proceedings began following an investigation into whether Deliveroo had incorrectly treated its couriers as self-employed. The Brussels Labour Prosecutor brought proceedings concerning alleged failures to declare and pay social-security contributions and remuneration.

The National Social Security Office, individual couriers and several trade unions participated in the proceedings.

On 8 December 2021, the French-speaking Brussels Labour Tribunal held at first instance that the relationship should not be reclassified. Although the sector-specific criteria created a presumption of employment, the Tribunal considered that Deliveroo had rebutted that presumption through the general classification criteria.

The Brussels Labour Court of Appeal reversed that conclusion on 21 December 2023.

The Court held that:

• Deliveroo’s central service involved transporting goods for third parties;

• the sector-specific presumption applicable to transport activities could therefore be used;

• at least six of the eight sectoral criteria indicating employment were satisfied;

• the practical relationship did not rebut the resulting presumption; and

• the couriers covered by the proceedings worked under an employment relationship.

The Court also rejected the argument that Deliveroo’s participation in the favourable tax system for the collaborative economy established that the couriers were self-employed.

Approval of a platform for tax purposes was based on formal requirements and did not determine the legal classification of its working relationships. The Court additionally found that the substantive conditions of the collaborative-economy regime were not satisfied in relation to the relevant Deliveroo activities.

The Court found that at least six of the eight sector-specific criteria supported the presumption of employment. Relevant circumstances included:

• the couriers did not bear meaningful financial or economic risk in Deliveroo’s business;

• they had no responsibility or decision-making authority concerning Deliveroo’s financial resources;

• they had no influence over Deliveroo’s purchasing policy;

• they could not negotiate the price of deliveries or their remuneration;

• they did not present themselves to third parties as a separate business;

• they did not undertake to produce an independently negotiated commercial result; and

• some couriers did not have a genuine possibility of subcontracting the work.

The Court then examined the four general classification criteria under the Programme Law:

• the parties’ expressed intention;

• freedom to organise working time;

• freedom to organise the work; and

• the possibility of exercising hierarchical control.

The written agreement described the couriers as self-employed. However, the couriers had no meaningful opportunity to negotiate its terms, and the contractual classification could be accepted only if it was consistent with the way the relationship operated in practice.

The Court identified several indicators of authority and control:

• Deliveroo determined the delivery process;

• couriers received detailed instructions for the different stages of a delivery;

• their performance was followed through the application in real time;

• Deliveroo determined the remuneration without individual negotiation;

• couriers could not use entrepreneurial skill to influence the volume of available deliveries;

• they did not know the final destination before accepting certain deliveries;

• refusals could require an explanation;

• Deliveroo imposed equipment and safety standards;

• geolocation allowed continuous remote monitoring;

• Deliveroo could investigate delays or deviations from recommended routes; and

• Deliveroo retained the ability to warn or sanction couriers.

Deliveroo relied on the couriers’ ability to:

• decide whether to connect to the application;

• choose when they wished to work;

• refuse proposed deliveries;

• perform work for other platforms; and

• use their own bicycle or other equipment.

The Court did not consider these facts sufficient to rebut the presumption of employment.

Referring to Belgian Court of Cassation case law, the Court explained that a person may retain the freedom to accept or reject proposed work while still performing accepted work under an employer’s authority.

An employment relationship does not require:

• a guarantee of continuous work;

• an obligation to accept every Assignment; or

• a traditional fixed working schedule.

Once a courier accepted a delivery, Deliveroo’s system determined important aspects of its execution. The Court therefore focused on the organisation and control of accepted work rather than treating the initial freedom to connect as decisive.

The use of personal equipment was also insufficient to establish independent entrepreneurship. A bicycle or mobile telephone represented only a limited investment and did not give the courier meaningful influence over pricing, customers, commercial strategy or the organisation of Deliveroo’s service.

The Court held that Deliveroo had not demonstrated the absence of a relationship of authority. The employment presumption was therefore not rebutted.

The claims seeking regularisation under employment and social-security law were held to be well founded in principle. Potential consequences included:

• payment and regularisation of social-security contributions;

• application of relevant wage rules;

• holiday pay;

• sectoral employment conditions;

• possible end-of-year payments and indexation;

• application of working-condition and wellbeing protections; and

• other employment entitlements, depending on each claim and the periods concerned.

The Court reopened the proceedings concerning the precise consequences and amounts. The 2023 judgment should therefore be distinguished from any later judgment determining the exact financial regularisation.

Deliveroo subsequently brought an appeal in cassation. In the latest materials identified for this review, that appeal remained pending. The 2023 decision must therefore be described as an important appellate judgment rather than a final Belgian Court of Cassation ruling.

The judgment is particularly relevant because it demonstrates that:

• platform approval and tax treatment do not determine employment status;

• the economic activity performed by the platform determines whether a sectoral presumption applies;

• algorithmic monitoring can constitute evidence of hierarchical control;

• freedom to log in or refuse work is not decisive;

• the method used to organise accepted Assignments may be more important than scheduling flexibility; and

• contractual self-employment wording cannot override incompatible working conditions.

The judgment directly concerned the couriers and claims included in the proceedings. It does not automatically classify every person working through every platform as an employee. Other relationships must be assessed on their own facts and under the applicable legal framework.