Newsletter Vestius march 2019

Within a period of six months, three legal actions have been conducted before the Amsterdam Court on the question whether Deliveroo couriers are employees or independent suppliers. In June 2018, bicycle courier Sytze Ferwerda lost the proceedings he had instituted against Deliveroo; in the judge’s opinion, he was not a pseudo self-employed worker.

On 15 January 2019, however, the Amsterdam Court (a different judge this time) ruled in a more general sense in two other cases (instituted against Deliveroo by trade union FNV) that Deliveroo couriers do work under employment contracts. How is that possible?

Deliveroo
Deliveroo has operated on the market since 2015 and focuses on meal deliveries for restaurants. In 2017, Deliveroo switched to a model in which it uses only self-employed workers. All the employees in Deliveroo’s service were given the option of continuing to work for Deliveroo as independent suppliers. According to Deliveroo, its couriers had greater freedom in performing their work as from that time. The FNV disputes that that is the case.

Find the differences
Whether a bicycle courier (or other platform worker) is an employee or an independent supplier depends on the manner in which the parties have operated in practice. Parties therefore cannot contractually preclude the existence of an employment contract: that depends on the circumstances. The key elements that were addressed in all three of these cases were the following:

In the Ferwerda case, the court found couriers have had a high degree of freedom since 2017 to decide whether or not they wish to work. They may decide, for instance, when they wish to work and what deliveries they accept. That is not in keeping with an employment contract, according to the judge in that case.
In the first FNV case, however, the court found that that freedom exists on paper but is in actual fact not all that strong, because the Deliveroo system greatly controls the allocation of deliveries. On the basis of algorithms, refusing deliveries may have a detrimental effect on the assignment of future deliveries and the granting of bonuses. Also, the couriers cannot negotiate the standard contract.
In the Ferwerda judgment the court also found that couriers are free to arrange for a replacement and also that their income has increased since 2017, which in the court’s opinion suggests independent supplier status. In the FNV cases, on the other hand, the court found that that “freedom of replacement” is a pseudo freedom. In such a case, after accepting a delivery, the courier must arrange for a replacement in a short period and that replacement must furthermore be approved by Deliveroo. Moreover, the couriers did earn significantly more, but not amounts that are so high that they cannot be considered “wages”.

In sum, the relationship between Deliveroo and the couriers has not essentially changed since the introduction of the new type of contract. The court therefore found that Deliveroo couriers work under employment contracts.

Collective agreement In the second FNV/Deliveroo case, the FNV demanded that Deliveroo comply with the Commercial Road Haulage Collective Agreement. The court agreed with the FNV that the delivery of meals by Deliveroo must be regarded as transport of goods by road and therefore comes under that sector’s collective agreement. Deliveroo must therefore retroactively comply with the collective agreement.

Consequences for platforms
Deliveroo has stated in response to the judgment that it will file an appeal. This will be the first time that a Dutch Court of Appeal addresses platform workers. In four other European countries (the United Kingdom, Ireland, Germany and France), the judge subscribed to Deliveroo’s position, namely that the couriers are independent suppliers.

The FNV has expressed its concern about platform workers in the past already and is not sitting idly by. Legal proceedings have also been instituted against Helpling; Uber will most likely also be summoned to appear in court. Platforms are also on the radar of the Dutch legislature. The Work Regulation Committee was set up in November 2018 to investigate platform labour.

For more information or advice on this subject please contact Bart de Vroe or Anna Görgün.