In an appeal case brought by Deliveroo, the court of Amsterdam ruled that Deliveroo food deliverers are entitled to an employment agreement. Earlier, the court of first instance had come to the same conclusion.
The court ruling gives couriers of delivery platforms a stronger legal position. Furthermore, the ruling is interesting in light of the recent public debate on false self-employment and the need for clearer legal distinction between employees and ‘real’ independent contractors.
The case evolves around the nature of the couriers’ agreements: do Deliveroo couriers qualify as self-employed or do they have an employment contract? The difference between both is significant, as employees are entitled to holiday pay, salary payment during illness, and sometimes pension schemes, which rights are not available to self-employed workers.
Are the food deliverers independent contractors or employees?
According to an earlier ruling of the Supreme Court of the Netherlands, it is irrelevant whether or not both parties intended to agree to an employment relationship. The determining factor is whether the agreed upon terms measure up to the legal requirements of an employment agreement. The requirements of an employment agreement are fulfilled if the employee:
- in service of the employer
- in exchange for remuneration
- for a certain period of time
- performs work.
In an extensively motivated judgement, the court concludes that the agreement between Deliveroo couriers and Deliveroo meets the abovementioned requirements. This means that the couriers have concluded an employment agreement and are not, as the agreement itself states, self-employed.
Notable is that, in the case of Deliveroo, the first requirement “in service of the employer” is mediated through a digital system designed by Deliveroo. As Deliveroo designed this system’s algorithm, Deliveroo has considerable influence on how work is performed and by which courier, implying that the agreement is indeed an employment agreement.
Deliveroo couriers have an employment agreement and not an independent contractor’s agreement.
Equally, the requirements “in exchange for renumeration” (Deliveroo is in charge of bills and pays the couriers biweekly) and “for a certain period of time” (on average longer than 3 months and for more than 20 hours per month) add up to this conclusion.
In addition, the freedoms that couriers have with regard to the requirement of performed work (for example, the possibility to let a substitute courier take over a delivery) are not incompatible with the existence of an employment agreement. The court, thus, ruled that all requirements for an employee agreement are fulfilled and that Deliveroo couriers work as employees of Deliveroo.
The legislature has a crucial role in settling the debate on false self-employment. Yet, despite a call for change of regulation from the Commission Borstlap last year, it is not expected that the current resigned government will introduce any major reforms.