Newsletter Vestius september 2018

Digital platforms have become a permanent fixture of our society. The platforms provide workforce such as cleaners (Helpling) or drivers (Uber) on demand. Digital platforms often work with platform workers who are self-employed. This platform structure has led to numerous issues involving the labour-law protection of platform workers.

One such digital platform is Deliveroo. Sytze Ferwerda is a rider for Deliveroo. Supported by the FNV trade union and crowdfunding, he recently took the position in court that he has an employment contract with Deliveroo rather than an independent-contractor agreement. However, the court of Amsterdam ruled that Mr Ferwerda is self-employed and that no false self-employment is involved.

Case
Since 1 February 2018, Deliveroo has worked with self-employed persons only. The riders who used to work under employment contracts for Deliveroo were made an offer to remain with the business on a self-employed basis. Mr Ferwerda took the position that he effectively remained working on the basis of an employment contract and that his is a case of false self-employment. Deliveroo states that it works with self-employed persons because this flexibility corresponds with the wishes of its riders. This method allows them to decide themselves where and how long they work.

Legal Framework
There is an employment contract if three criteria are fulfilled: labour, authority and wage. The court takes all the circumstances of the case into consideration in its review, including the intention of the parties and the manner in which the contract is performed.

Relevant circumstances
In this case, the court ruled that the self employment status was not false, essentially, because the performance of the work effectively changed after the conversion to a self- employment contract. The court also attached weight to the following factors:

The parties’ intention: It was evident from the independent contractor agreement that the intention was that the rider would henceforth work as a self-employed person. In addition, Mr Ferwerda confirmed this in an email. He also registered with the Chamber of Commerce and applied for a VAT number;
Relationship of authority: After the conversion of the employment contract into an independent contractor agreement, there was no longer a relationship of authority. Unlike in the past, the rider himself could decide whether to sign in for work and could decline orders. He could also choose what clothes to wear while at work. In addition, he was allowed to work for a competitor and have somebody substitute for him. Although Deliveroo gave certain safety instructions, they are allowed under an independent contractor relationship.

A platform worker is either an employee or a self-employed person under Dutch law, with no other options in between. The subdistrict court acknowledged that current labour law has not yet adjusted to new developments such as platform work, but considered in this regard that: ‘It’s up to the legislature to adopt measures when it is undesirable that such situations continue to exist.’

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