The presumption of an employment contract within digital platforms (Uber)

Abstract

This paper analyzes the presumption of employment in Portuguese Labor Law, with a special focus on the context of digital platforms. Starting from the distinction between employment contracts and service contracts, it highlights the central role of legal subordination and the principle of the primacy of reality in the qualification of labor relations.

The study addresses the legal framework of digital platforms, namely Law No. 45/2018, of August 10 (TVDE regime), highlighting its limitations in the face of new forms of work organization and the need for its updating in light of the presumption of employment introduced by Article 12-A of the Labor Code.

Particular attention is given to the situation of delivery drivers, whose activity, although frequently described as autonomous, reveals typical characteristics of subordinate work, such as integration into the platform's organization, algorithmic control of performance, and limitation of autonomy.

The evolution of Portuguese case law is also analyzed, which has been increasingly affirming the existence of employment contracts between delivery drivers and digital platforms, both through the application of the presumption provided for in Article 12-A and through the use of the traditional evidentiary method.

It is concluded that the presumption of employment is an essential instrument to ensure the protection of workers in the digital economy, and it is also necessary to adapt existing legal regimes, such as Law No. 45/2018, in order to guarantee an effective correspondence between the legal framework and the reality of labor relations.