Early in 2018 Deliveroo announced that it would not renew any existing fixed-term employment contracts anymore. Following expiry of their employment contracts, riders could only keep working for Deliveroo as self-employed individuals. The trade union FNV believes there is still an employment relationship. FNV initiated a court procedure and claimed a declaratory judgment stating that the relationship between Deliveroo and its riders, in deviation of the agreement with individual riders, qualifies as an employment relationship. FNV also argued that the collective labour agreement (“CLA”) for the haulage sector has to be applied. On 15 January 2019 the Subdistrict Court of Amsterdam ruled that FNV has a cause of action and FNV won the case.
Deliveroo-riders are (still) employees
The Subdistrict Court agrees with FNV that there is an employment relationship. The nature of the work and the legal relationship between the parties has not changed to such an extent since 2018 that there is no relationship of authority anymore. As far as the question is concerned whether there is an obligation to perform work, the Subdistrict Court considers that although the riders can decide for themselves whether they accept an order, they will be disadvantaged if they refuse or are available less often for receiving future delivery services and earning bonuses. This makes the freedom of the riders to accept an order or not considerably smaller than the contract suggests.
The option of the riders to be substituted freely also does not stand in the way of assuming a relationship of authority. This rule is also in line with a relationship of authority, especially because Deliveroo can exercise the same authority vis-à-vis the substitute. Besides, there is no question of an option of free substitution, since the prior approval of Deliveroo is required. Moreover, the right of the riders to arrange for their substitution freely is in practice devoid of meaning, since the time between accepting a delivery order and the actual delivery is so short that there will be no need to use the option of substitution. This will only be different if an entire shift is taken over. There is also hardly to any room for negotiations about remuneration.
All things considered, the Subdistrict Court concluded that the nature of the work and the legal relationship between Deliveroo and its riders has not essentially changed since early 2018 to such an extent that it is no longer an employment relationship.
CLA haulage sector applicable
According to the Subdistrict Court, the CLA for the haulage sector applies to the employment agreements. The delivery of meals of Deliveroo must be qualified as transportation of goods by road, and therefore it falls under the CLA for the haulage sector. As a result, Deliveroo is obliged to comply with the CLA with retroactive effect.
Legal uncertainty remains
Earlier, on 23 July 2018, another judge of the Subdistrict Court of Amsterdam ruled differently in a Deliveroo case. This case concerned the 20-year-old rider Ferwerda, and here the judge of the Subdistrict Court ruled that there was no employment relationship (see: ‘Deliveroo Rider Is Self-Employed’). In this specific case, the judge of the Subdistrict Court mainly attached importance to what the parties had agreed on in writing among themselves, while in the ruling of 15 January 2019 the judge of the Subdistrict Court looks at the legal relationship between Deliveroo and its riders in general, and on the contrary attaches more importance to the actual performance of the agreement. Moreover, in the ruling of 15 January 2019 the judge of the Subdistrict Court observed that in her opinion, given fast developments in the Dutch platform economy, it may be important for the development of law that different opinions are pronounced on this issue.
After these rulings of 15 January 2019, the legal uncertainty about the status of platform workers still remains. Deliveroo has announced that it will lodge an appeal. In addition, FNV has announced that it will bring legal proceedings against other platform companies like Helpling (cleaning services) and Uber-Eats (delivery service). So we can expect more court rulings in the near future.
The debate about the qualification of platform workers follows from the general current debate in the Netherlands about the increase of (pseudo) self-employed persons. In the coalition agreement of 10 October 2017, the Cabinet announced new measures to fight pseudo self-employment by setting clearer criteria, such as a minimum rate. However, Minister Koolmees of Social Affairs and Employment has concluded from talks with the European Commission that these measures are probably in conflict with EU law. Minister Koolmees has announced earlier that he is working on alternatives, which he will present for consultation in the spring of 2019. As a result, the successor of the current Dutch Act regarding independent contractors (i.e. the controversial DBA Act), will be moved forward to January 2021. Of course we will keep you posted of developments.
Do you want to learn more about this subject? Please contact Soo-Ja Schijf.
