The Directive 2024/2831 of the European Parliament and of the Council (“the Directive”) on improving working conditions in platform work was published on November 11^th, having the Member States, until December 2^nd, 2026, to transpose the Directive into national law.

The Directive aims to improve working conditions in platform work and the protection of personal data, particularly by introducing measures to facilitate the determination of the correct employment status of persons performing platform work.

To accomplish its objective, the Member States must have appropriate procedures in place to determine the correct employment status of persons performing platform work, enabling the verification of the existence of an employment relationship, inter alia, through the legal presumption of an employment relationship in favor of persons performing platform work. This being similar to what already occurs in Portugal. Hence, the Directive foresees that, where facts indicating direction and control are found, there is a contractual relationship between the person performing platform work and the digital labor platform. In case the digital labor platform considers that an employment relationship does not exist, it will have the burden of proof regarding the non-existence of said relationship.

Article 12-A of the Portuguese Labor Code, approved in 2023, requires the existence of some facts evidencing an employment relationship for it to be presumed that such relationship actually exists: (i) the remuneration is set by the platform operator; (ii) the operator directs the way in which the provider operates and presents itself; (iii) the operator controls the activity provided, in particular through electronic means or algorithmic management; (iv) the operator restricts the autonomy of the provider with regard to the organization of the work, the possibility of accepting or refusing tasks, the use of subcontractors, the choice of clients or the provision of the activity to third parties via the platform; (v) the platform operator exercises employment powers over the provider, in particular by deactivating the account, and (vi) the equipment and work instruments used belong to the digital platform operator or are exploited by the latter through a leasing agreement.

There are already court decisions on the subject in Portugal.

The vast majority of decisions (around 11 to date) have considered that there is a hidden employment relationship within digital platforms, which must prevail even if the title of the contract says otherwise (e.g. Judgment of the Court of Appeal of Guimarães, 03/10/2024). There is also an opposing decision, which in a specific case did not recognize the existence of an employment contract. (Judgment of the Évora Court of Appeal, of 12/09/2024).

The new Directive has already been materially transposed into Portuguese law, so its approval in Portugal will no longer have a major impact in practical terms.

The development of the issue will continue to be carried out by the courts.