In its recent judgment, the Supreme Court answered the question whether the deliverers of the online platform Deliveroo, who offered a delivery service to independent restaurants via its platform, perform the work on the basis of an assignment agreement (as self-employed) or an employment contract.
The Amsterdam District Court and subsequently the Amsterdam Court ruled that the Deliveroo deliverers had an employment contract. Deliveroo lodged a cassation against this.
Indeed, Deliveroo was of the opinion that the deliverers carried out the work as independent entrepreneurs (and therefore not as employees). In essence, she based this on the fact that the delivery drivers had the freedom to work or not and also had the option to be replaced. That high degree of freedom would not be compatible with an employment contract, according to Deliveroo.
The Amsterdam Court of Appeal ruled that, despite the freedom given to the deliverers with regard to the performance of work and the possibility of being replaced, there was an employment contract. This freedom did not prevent the agreement from being classified as an employment contract, because other circumstances led to the conclusion that the deliverers work for Deliveroo. In that context, the court referred to the four requirements for adopting an employment contract (i.e.: employment, salary, employment and for a certain period of time) and concluded that these were met in this case.
The Supreme Court upholds the court's ruling — that the Deliveroo deliverers had an employment contract —.
According to the Supreme Court, it depends on all the circumstances of the case whether there is an employment contract. The court assessed those circumstances and subsequently ruled that the Deliveroo deliverers had an employment contract. This opinion is not an error of law and is also understandably motivated, the Supreme Court concluded.
After all, the court had seen that the freedom to work and the possibility to be replaced are circumstances that indicate that there is no employment contract, but that, due to the other circumstances, there was still an employment relationship. In particular, this took into account that the practical importance of the replacement option for the deliverers was limited and what applies if the delivery person does accept the work (and the frequency with which and the duration for which this usually happens).
Deliveroo's deliverers therefore had an employment contract, even though Deliveroo believed it was working with “freelancers”. As a result, the (strict) employment law regime applies and social charges and payroll taxes should have been paid. What other possible implications that may (still) have for Deliveroo or for you? We would be happy to tell you more about that.
Do you have other questions or want to know more about this ruling? Feel free to contact one of our specialists.
Emmaly Hartman
lawyer
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