Under the terms of article 12-A, added to the Labour Code by Law 13/2023, of April 3, a digital platform is a legal person that provides or makes available services at a distance, through electronic means, such as an internet portal or computer application, at the request of users, and which involves, as a necessary and essential component, the organisation of work provided by individuals in exchange for payment, regardless of whether that work is provided online or in a specific location, under the terms and conditions of a business model and a specific brand.
The law expressly states that this regime covers Individual and Paid Transport of Passengers in Uncharacterised Vehicles (TVDE) companies. Another example of work on digital platforms is food delivery.
Thus, according to the aforementioned provision of the Labour Code, the existence of an employment contract is presumed, within the scope of a digital platform, when some of the following characteristics are present in the relationship between the activity provider and the digital platform:
- the digital platform sets the remuneration for the work done on the platform or establishes maximum and minimum limits for it;
- the digital platform exercises the power of direction and determines specific rules, in particular regarding the way in which the activity provider is presented, its behaviour towards the service user or the provision of the activity;
- the digital platform controls and supervises the execution of the activity, including in real time, or verifies the quality of the activity, namely through electronic means or algorithmic management;
- the digital platform restricts the activity provider’s autonomy in terms of the organisation of work, especially in terms of the choice of working hours or periods of absence, the possibility of accepting or refusing tasks, the use of subcontractors or substitutes, through the application of penalties, the choice of clients or providing activity to third parties via the platform;
- the digital platform exercises labour powers over the activity provider, namely disciplinary power, including exclusion from future activities on the platform by deactivating the user’s account;
- the equipment and work instruments used belong to the digital platform or are operated by them through a leasing contract.
In cases where an employment contract is considered to exist, the rules provided on the Labour Code that are compatible with the nature of the activity performed will be applied, namely the provisions on accidents at work, termination of the contract, prohibition of unjustified dismissal, minimum remuneration, holidays, limits on normal working hours, equality, and non-discrimination.
That presumption can be rebutted in general terms, namely if the digital platform proves that the service provider works with effective autonomy, without being subject to the control, power of direction or disciplinary power of the person who hires them.
It should be noted that the digital platform and the natural or legal person who acts as an intermediary for the digital platform to provide the services through their workers, as well as their managers, administrators or directors, and the companies that are in a reciprocal, controlling or group relationship with them, are jointly responsible for the employee’s claims resulting from the employment contract, or its breach or termination, celebrated between the employee and the natural or legal person that acts as an intermediary for the digital platform, for the corresponding social charges and for the payment of fines imposed for labour offences committed in the last three years.
It is important to note that it is a very serious administrative offence for the employer, whether it is a digital platform or a natural or legal person acting as an intermediary for the digital platform to offer services through the respective workers, to contract the services, in an apparently autonomous way, under conditions that are characteristic of an employment contract, which may cause damage to the employee or to the State.
By Dr Eduardo Serra Jorge
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Dr Eduardo Serra Jorge is founding member, senior partner and CEO of lawyers firm Eduardo Serra Jorge & Maria José Garcia – Sociedade de Advogados, R.L., created in 1987.
In his column, he addresses legal issues affecting foreign residents in Portugal.
Faro office at Gaveto das Ruas Pedro Nunes e José de Matos, 5 R/C
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