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Netherlands – Court of Appeals rules Deliveroo couriers are employees, not self-employed

17 February 2021

Amsterdam’s Court of Appeals ruled yesterday that agreements between Deliveroo and its couriers qualify as employment contracts.

The landmark ruling follows a Supreme Court decision in November which ruled that riders are employees and not self-employed. Deliveroo had appealed that decision. However, it has now lost that appeal.

Dutch Trade union FNV, which brought the case in 2018, demanded a declaration that the deliverers work at Deliveroo on the basis of an employment contract.

Deliveroo had pointed out that its deliverers are free to work for a competing company. The court stated that it is of the opinion that this circumstance, certainly now that more than two-thirds of the deliverers at Deliveroo work as a hobby and thus earn less than 40% of the regular minimum wage, is ‘not a circumstance that is of great importance for the presence or absence of an employment contract.’

“Although the freedom with which the work can be performed outlined above may indicate the absence of an employment contract, the Court of Appeal is of the opinion that it is not such that the qualification 'employment contract' is incompatible with it,” the Court stated.

Deliveroo also stated that there is no relationship of authority between it and the deliverers. Trade union FNV disagreed. Deliveroo points out that the deliverers are free to carry out the work in a manner that they see fit, in particular that they are allowed to determine the route they wish to drive. FNV points out that this freedom is very relative, since meals must be delivered quickly, and a delivery person will therefore generally have to choose the fastest route.

In the Supreme Court judgement of 6 November 2020, the Supreme Court ruled that in order to qualify an employment relationship, the elements 'employed', 'wages', 'for a certain period of time' and 'work' must be considered.

In its conclusion, the Court of Appeal stated, “All the circumstances taken together, the court finds that only the freedom given to the deliverers with regard to the performance of the work is a circumstance that indicates the absence rather than the presence of an employment contract.”

“All other elements, including the method of payment of wages, the authority exercised, the certain period of time (with legal presumption), as well as the aforementioned other circumstances indicate the presence of an employment contract rather than the absence thereof,” the statement continued. “Moreover, the freedom given to the deliverers with regard to the performance of the work is not incompatible with the classification of the agreement as an employment contract.”

The Court of Appeal also held that, in view of the level of income (€11.00 to €13.00 per hour), ‘it is not quite possible to make adequate provisions for incapacity for work and unemployment.’

“It is precisely this group that therefore has a greater need for the agreement to be classified as an employment contract, since labour law does grant them those provisions,” the Court of Appeals stated.

“In conclusion, the court is of the opinion that the deliverers of Deliveroo work on the basis of an employment contract,” it stated. “The grievances, all of which are based on an opposite view, fail.”

Deliveroo was also ordered to pay the costs of the appeal proceedings.

Separately, Sky News reported that the human cloud food courier could launch proceedings for an IPO in the London Stock Exchange in March.