Platform Labour Under Fire in the Netherlands and Other European Countries

Bart de Vroe

b.de.vroe@vestius.com

Vestius Attorneys at Law

www.vestius.com

Platform labour by Uber and Uber-Eats, for instance, but also Deliveroo, is under the magnifying glass of politicians, trade unions, and also the courts.

Platform labour is still a relatively new phenomenon. When it was introduced on a large scale in Europe some years ago, fundamental questions were immediately raised about the qualification of platform workers. Are they working as employees or are they self-employed as independent contractors?

 

Qualification of Platform Workers in Europe

The qualification differs across European jurisdictions, but traditionally employees are expected to work under the management and supervision of an employer, which is not the case with platform workers. On the other hand, labour platforms generally exercise a certain degree of control over their workers; for example, by demanding the use of specific outfits/logos. The algorithms that are used by the labour platform can also exercise control by evaluating the work and assigning more or less work to a specific worker, or by giving instructions on how to perform a job. In addition, many platform workers do not view themselves as self-employed.

In most European countries, the difference in qualification means a significant difference in legal position. Traditionally, employees enjoy a high level of protection by mandatory employment laws. Those laws range from dismissal protection, minimum wage, and paid leave to automatic insurance for state benefits, such as health benefits and state pension. Independent contractors are generally viewed as entrepreneurs with little to no mandatory legal protection.

 

Case Law Across Europe and the UK

Case law on the qualification of platform workers in Europe reveals a lot of difference from country to country. Deliveroo, for example, has been to court in several European countries. Courts and regulators in the UK, Ireland, Germany, and France have ruled that Deliveroo workers are self-employed. In Spain and the Netherlands, courts (of appeal) have qualified Deliveroo workers as employees. Recently, the UK Supreme Court has ruled that Uber drivers are not self-employed but are qualified as “workers” (a category in between employees and self-employed workers) giving them more mandatory rights. And the Supreme Court in France has even ruled that an Uber driver was qualified as an employee.

 

European Guidance

In 2018, the European Commission issued a report on platform workers in Europe. The report acknowledged the problem of qualifying platform workers either as employees or independent contractors. However, according to the report, no immediate changes were needed to regulate platform labour. A harmonised approach and stronger enforcement of the difference between employees and self-employed workers was recommended. In a different report from 2018 by Eurofound, it was recommended to clarify the position of platform workers in different European countries under their local laws.

In 2019, the European Union published Directive 2019/1152 on transparent and predictable working conditions in the European Union. This Directive aims to provide employees with flexible working contracts, including platform workers, additional legal protection. Key to this Directive is that the platform worker has to qualify as an employee to enjoy its protection.

 

Recent Case Law in the Netherlands

On 16 February 2021, the Amsterdam Court of Appeal ruled in the legal action between trade union FNV and Deliveroo that Deliveroo’s meal delivery drivers work on the basis of employment contracts. They are therefore not self-employed.

Regarding the classification as an employment agreement, the Court of Appeal referred to case law of the Dutch Supreme Court. According to the Supreme Court, the elements “in employment”, “wage”, “during a certain period of time”, and “labour” must be considered.

It is undisputed that the delivery drivers perform labour. Drivers are free to decide when to work, but in the Court of Appeal’s opinion it is not of such a nature as to be incompatible with the classification of “employment contract”.

Deliveroo pays its delivery drivers a fixed amount per order for the work performed, which satisfies the wage requirement. The individual delivery drivers cannot influence the amount of the wage. According to the Court of Appeal, that is more in line with an employment contract than with a contract for services.

In the Court of Appeal’s opinion, the work performed by the delivery drivers can be considered Deliveroo’s core activity; that indicates a relationship of authority. The fact that Deliveroo each time unilaterally changes the provisions of the contracts and the manner in which the work is organised also suggests that Deliveroo exercises authority over the delivery drivers.

The Court of Appeal ruled that it had not been demonstrated that the delivery drivers who work for Deliveroo do so to a negligible extent. According to the information provided by Deliveroo, the delivery drivers work on average more than twenty hours per month.

 

Conclusion

The Court of Appeal found that the freedom given to the delivery drivers to determine when they want to work is in actual fact the only circumstance that suggests the absence of an employment contract. All the other elements point to the existence of an employment contract.

Deliveroo has announced that it will file an appeal with the Supreme Court. The Supreme Court’s ruling is awaited. It remains to be seen to what extent that will have further consequences for other platform companies; the Dutch Supreme Court may soon provide more generally applicable guidance in this respect.

For information or advice on this subject please contact Bart de Vroe (+31 6 203 662 43).

 

XLNC MAGAZINE | No. 07 | Spring 2021

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