Last Friday, the Supreme Court delivered the long-awaited Deliveroo judgment. The question at issue in this case was whether the riders of Deliveroo were self-employed persons or employees. The Supreme Court upheld the opinion of the Amsterdam Court of Appeal. This article describes the new points (for attention) that arise from the judgment, and which meaning this has for practice.
Background
The meal delivery company Deliveroo started its activities in the Netherlands in June 2015. Until some point in 2018, riders used to work on the basis of a fixed-term employment contract. In 2018 Deliveroo decided not to renew the employment contracts and to have the riders work as self-employed persons via a contract for services. Mid-2018 the trade union FNV started legal proceedings against Deliveroo in which it claimed that the riders were working on the basis of an employment contract. The Subdistrict Court of Amsterdam found for the trade union FNV. On appeal, the Court of Appeal of Amsterdam also held that there was an employment contract. The core of these judgments was that the relationship between the riders and Deliveroo considered in its entirety resembled an employment contract rather than a contract for services. Especially the algorithm ‘Frank’, which was used to allocate and deliver meals, ensured a far-reaching control option for Deliveroo, which made it an important indication of the existence of an employment contract.
Conclusion Attorney General
Prior to the judgment of the Supreme Court, Attorney General De Bock advised in her opinion not to pay too much attention to the authority of the provider of work to give instructions. The starting point should be whether the work was embedded in the organization of the provider of work. Points of view in this respect would include the following: (i) whether core activities are being performed, (ii) whether the activities are structural in nature, and (iii) what the organizational context is within which the activities are performed (place of work, working hours, etc.). If the opinion of Attorney General De Bock would be followed, this could have major consequences for working with self-employed persons.
Supreme Court
The Supreme Court did not follow the opinion of the Attorney General and held that it should be assessed on the basis of all circumstances of the case whether there is an employment contract. Embedding of the work in the organization of the provider of work is one of these circumstances, but it is not the starting point for the assessment whether there is a relationship of authority. This was existing case law already. The Supreme Court refers to the (European) legislator for the setting of further general rules or principles. At present several proposals are under discussion, including the legislation announced in the Progress letter on working with self- employed persons of the Minister of Social Affairs and Employment, and the Platform Workers Directive of the European Commission. However, the Supreme Court also considered a few points that had not emerged so clearly before:
- The first point is that the Supreme Court takes into account whether the worker behaves or can behave as an entrepreneur in social and economic life. For example by acquiring a reputation, by acquisition, as far as tax treatment is concerned, in terms of number of clients, and the duration for which the worker commits himself to one specific client. Although this is taken into account more often in European case law (such as the FNV/Kiem judgment and the Yodel judgment of the European Court of Justice), the Supreme Court has not considered this so clearly before.
- Secondly, it is contemplated that the freedom the riders had in performing their work (e.g. working or not or being free to let others replace them) is a circumstance that indicates the absence of an employment contract. However, this freedom does not exclude that there is an employment contract. This should be assessed on the basis of all circumstances of the case.
- Thirdly, the Supreme Court considered that the weight that is attached to a contractual clause when assessing the question whether an employment contract exists depends also on the extent to which this clause has actual significance for the worker. With regard to the free replacement clause, it is contemplated that the riders only had themselves replaced occasionally in practice. The actual significance of this clause in the assessment whether there is an employment contract is therefore limited.
Meaning for Practice
For practice, the above means that it should still be assessed on the basis of all circumstances of the case whether an employment contract exists. Embedding of the work in the organization of the client is one of these circumstances, but it is not the starting point for the assessment whether there is a relationship of authority. What is new is that (more) attention seems to be paid in this assessment to the question whether the worker behaves or can behave as an entrepreneur in social and economic life, for example by the freedom to commit himself to several (possibly even competing) clients. In addition, even more emphasis will be placed on how the parties work in practice. In 2020, the Supreme Court already ruled in the x/Municipality of Amsterdam judgment that the intention of the parties is (much) less relevant. We can now add to this that little value seems to be attached anymore to contractual clauses that have as their sole purpose to exclude the existence of an employment contract.
Are you working with or do you want to start working with self-employed persons? It is important to assess or have assessed whether this is (still) possible, and if not, what adjustments you could make in order to limit your risks (further). It may have big (financial) consequences if it is concluded at a later time that there is an employment contract. Our specialists will be happy to help you.
Any questions, please contact Ruud Schepers and/or Ester Damen.
