On 1 November 2017, Deliveroo announced that it would not renew any existing fixed-term employment agreements anymore. After expiry of their employment agreements delivery workers could only keep working for the company as self-employed individuals. The twenty-year old delivery worker Ferwerda accepted the self-employed contract, but (with hindsight) believes that this is actually a matter of pseudo self-employment. In court he claimed a declaratory judgment stating that the contract concluded between the parties should be qualified as an employment agreement. He received support from the group of the PvdA (social democrats) in Parliament and from the trade union FNV.
No Employment Agreement
On 23 July 2018, the Subdistrict Court of Amsterdam ruled that there was no question of an employment agreement. The Subdistrict Court gave two reasons for its opinion.
Firstly, it matters what the parties have agreed upon. In the opinion of the court it is clear from the contract for services that it was the intention of the parties that the delivery worker would start working as a self-employed person and that the parties did not intend the delivery worker to enter the employment of Deliveroo under an employment agreement. Indeed, the delivery worker has confirmed this in an e-mail. Moreover, he has registered with the Chamber of Commerce as a sole proprietorship and has applied for a VAT number. By doing this, the delivery worker has knowingly and willingly accepted a contract for services.
Secondly, it matters in what way the parties have executed the agreement. In a self-employed working relationship no relationship of authority is allowed to exist between the client (Deliveroo) and the contractor (the delivery worker). If there is, that would imply a pseudo construction. The Subdistrict Court has ruled that there is no relationship of authority between Deliveroo and the delivery worker, since the delivery worker is free to decide whether or not to report for work and is also free to refuse orders, after which the order will be offered to another delivery worker. Furthermore, the delivery worker is free to work wearing his own clothes or the clothes of a competitor and using his own thermobox, as long as these meet security requirements. Finally, the delivery worker is free to work for a competing company and can freely ask other persons to do the work for him.
Given the above information, the Subdistrict Court concluded that in view of the contract concluded between the parties and the way in which they subsequently in fact performed this contract, their relationship does not qualify as an employment agreement.
Legislator Must Take Action
The interesting thing about this ruling is that the Subdistrict Court acknowledges that current employment law has not taken into account the employment relations arising from the (relatively) new platform economy, but rules nevertheless that the qualification as a self-employed individual is not so unreasonable as would force the Subdistrict Court to rule differently. According to the Subdistrict Court, it is up to the legislator to take action if it is considered undesirable for work platforms such as Deliveroo to offer contracts as described above.
Platform Economy
This is the first time that a Dutch court has expressed an opinion on employment relationships in the platform economy. In other European countries, like France and the United Kingdom, several court cases have already been conducted. In Spain too the court has ruled in a case concerning Deliveroo on 1 June 2018; the conclusion was that there was pseudo self-employment and that the delivery worker was actually employed under an employment agreement.
The ruling of the Subdistrict Court of Amsterdam of 23 July 2018 confirms that the Dutch courts assess on the basis of all facts and circumstances whether the relationship between the platform company and the worker qualifies as an employment relationship or as a self-employed relationship. This means that the working method of the platform company will determine the outcome and that other (deviating) rulings for other platform companies may follow in the future.
This casuistic approach will allow the legal uncertainty about the status of platform workers to continue. In the meantime, concerns about the increasing platform economy are growing. 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 Dutch government announced measures to fight pseudo self-employment by setting clearer criteria, such as a rate floor. However, it is still doubtful whether the announced legislation will indeed offer platform workers a solution. The Subdistrict Court of Amsterdam has rightly observed that it is the legislator's task to assess whether any specific measures for platform companies should be taken. We can imagine that the Dutch legislator will first wait and see if any new legislation will come from the European Union, as the European Commission has made a proposal to that effect earlier this year.
