To understand the problem with platform workers in particular, it is necessary to know the difference between an employment relationship according to law and freelancing, i.e. working as a self-employed person. The question matters in every country – and the answer is given by national law, not by the parties: what counts is how the work is actually done, not what the contract is called.
According to Swiss law (Art. 319 CO) and Swiss case law, someone is an employee if he or she is integrated into the employer’s work structure. One cannot judge this on the basis of individual circumstances, but only on the overall circumstances. In particular, the following elements, at least partly in combination, indicate an employment relationship: the employer’s right to issue instructions (most important criterion), fixed place of work (does not necessarily have to be given), fixed working hours (does not necessarily have to be given), prescribed means of work, regular salary. Mandatory and dispositive labour law as well as Swiss social security law apply to employees.
A freelancer (self-employed person) is «free» insofar as he or she is not integrated into a work structure. He or she receives an order from a client – usually a contract for work (Art. 363 CO, a result is owed) or a service contract (Art. 394 CO, careful execution is owed) – and is free to choose the working conditions and the means of work. As a rule, the only requirement is the delivery of the agreed work in the agreed time. The Swiss Federal Supreme Court adds a second test: a self-employed person bears an entrepreneurial risk – own investments, own clients, the risk of not being paid (BGer 9C_308/2017 of 17 May 2018, E. 4.2; reported in NZZ, 6 June 2018, in German).
The most important effect of the distinction is that an employer does not have to insure a freelancer socially and does not have to pay social security contributions for him or her. However, this is also the greatest risk for an employer: the social insurance funds can claim back contributions from employers of supposed freelancers, i.e. legally effective employees – in Switzerland for up to five years (Art. 16 Old-Age and Survivors’ Insurance Act, no official English translation). This can be a heavy financial burden, especially if an employer has several such cases. How can employers be sure of the legal relationship? There are no watertight solutions, but one possibility is to ask the relevant social security authority to confirm the status of the person in question before the work starts. In other countries, similar tests and similar risks exist – check yours in the exercise.
Exercise: when does Lea become an employee?
Nordwind Design GmbH, Zug, hires Lea, a graphic designer who works from her own studio in your country. Read the chat between Marc (Nordwind) and Lea:
Task: Decide for yourself: at which message, if any, does Lea stop being a freelancer and become an employee – under Swiss law, and under the law of your country? Which messages are the strongest signs? Then put the chat into a chatbot of your choice (Claude, ChatGPT) and ask it the same question for both countries. Do you agree with the chatbot? Finally: what should Nordwind have done before message 5?