Employment status of platform workers (national courts decisions overview – Argentina, Australia, Brazil, Chile, France, Nederland, Italy, Switzerland, United Kingdom, United States & Spain)

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On November 16, I had the opportunity to participate in the round table of the III Annual Conference of the Institute of Labor Studies of the Autonomous University of Barcelona, hold in Barcelona and dedicated to the future of work.

My intervention focused on the employment status discussion of platform workers in national courts (as far as my knowledge reaches, at least, in the following countries: Australia, Brazil, Chile, France, Italy, United Kingdom, United States and Spain).

In my opinion, this analysis suggests that a ‘false debate regarding dependence or subordination’ is taking place, in particular because the fact that the service is developed through platforms (offline and online) does not weak by itself this substantial trait. Thus, without denying the challenges that this new reality poses, which affect several employment contract’s aspects, I defend the non-obsolescence of the characteristics of paid employment in this environment. In other words, I’m far from the initiatives that plead the «independent worker» status nor independent contractor (see for a full detailed explanation in this paper – Spanish; and this book).

The main purpose of this post is to compile these judicial decisions and offer a descriptive non exhausthive overview, highliting certain aspects of the considerations (in any case, I apologize in advance if any reference or content of the decisions that are synthesized are not sufficiently precise according to the legal framework of the respective countries).

I hope it might be useful (and If you have knowledge of new decisions I will be very grateful if you could notify them to me).

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Summary


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A. Employment relationship

B. Independent Contractor

[updated: 9/11/2019]

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A. Employment relationship


Argentina

  • Jugado de 1era Instancia en lo Contencioso Administrativo y Tributario núm. 2, Buenos Aires

2 August 2019, Glovo, Rappi & Pedidos Ya. The ruling suspended the activity until further notice of Glovo, Rappi and Pedidos Ya. They must comply with safety regulations and labor and social security regulations and the Police are mandated to control every day if they are operating and breaking standards. 

 

  • Juzgado Nacional de Primera Instancia del Trabajo núm. 37, Buenos Aires

19 March 2019, Rappi: Judge rules that blocking of unionized workers is a violation of their freedom of association (according to ILO C84 and Section 14 of the Constitution) and orders the block lifted. Even though the decision doesn’t settle the riders’ employment status (it’s an «interim measure action» – «medida cautelar»), holds that it’s plausible («es verosímil») that they work on demand integrated into the defendant business [A critical comment by F. Rosenbaum (Spanish) here].

 

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Australia

  • Fair Work Commission

16 November 2018, Joshua Klooger v Foodora Australia Pty Ltd: the Commission rules that the rider is an employee not a contractor, and also that the company should pay the worker $15,000 in compensation of the unfair dismissal: «The correct characterisation of the relationship between the applicant and the respondent is that of employee and employer. The conclusion that must be drawn from the overall picture that has been obtained, was that the applicant was not carrying on a trade or business of his own, or on his own behalf, instead the applicant was working in the respondent’s business as part of that business. The work of the applicant was integrated into the respondent’s business and not an independent operation. The applicant was, despite the attempt to create the existence of an independent contractor arrangement, engaged in work as a delivery rider/driver for Foodora as an employee of Foodora». [A critical comment by Professor E. Rojo (Spanish) here and V. De Stefano here].

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Brasil

  • 33ª Vara Do Trabalho de Belo Horizonte

13 February 2017Uber: The employment relationship between a driver and Uber has also been recognized, among other reasons, because the company ‘exercised, in reality, power and control over the manner in which the services were rendered, such as the supply of “sweets”, water, the manner of dress or behaviour which, despite not being formally mandatory, were essential for the worker to receive good ratings and remain a “collaborator” of the respondent, with authorization to access the platform’. Adding, in addition, that the company uses direct means of control since the drivers ‘cannot give the customer a card inside the car, which constitutes serious misconduct receiving a sanction of being blocked; (…) if the passenger communicates serious misbehaviour on the part of the driver, he would be blocked from the platform; once the fault is confirmed, the driver would be blocked’. Another aspect to highlight is that through an algorithm the company establishes that the rejection of various tasks leads to the blocking of the worker for a certain time and even if the acceptance rate is lower than 80%, progressive blocks are established from 10 minutes to 12 hours.

 

  • 42ª Vara Do Trabalho de Belo Horizonte

12 June 2017, Uber: In fact, the driver had no customer of its own. The customers are from the company, even after the service. The drives did not even have the freedom to choose which customer the company was going to attend, being able to only accept or reject the customer indicated by it.

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España

  • Tribunal Superior de Justicia de Asturias (Sala de lo Social)

25 July 2019, Glovo. The tribunal upholds the ruling of the Juzgado de lo Social núm. 1 Gijón, dated on 20 February 2019 (see below). It also argues than this ruling follows the content of the new Directive (UE) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union.

 

  • Juzgado de lo Social núm. 19 Madrid

22 July 2019, Deliveroo. The decision holds that more than 500 riders have an employment relationship. [A critical comment by Professor E. Rojo (Spanish) here].

 

  • Juzgado de lo Social núm. 33 de Madrid

11 February 2019, Glovo: The platform has a full control over the rider activity, and also fixes how to develop the service and certain behavior patterns. This activity is evaluated after through profiles, which determines future assignation of new services and also eventually enables dismissals. The rider will never be able to carry the service by his own without the platform he belongs to. If he decided to undertake this kind of activity on his own as an authentic independent contractor, he would be doomed to failure [A critical comment in this blog (Spanish) here].

 

  • Juzgado de lo Social núm. 1 Madrid

3 April 2019 & 4 (2) April 2019, (n134/2019 / n130/2019) Glovo: In the three cases, there’s an employment relationship and follow the same arguments as the 11 February 2019 (Glovo) ruling of the Juzgado de lo Social núm. 33 Madrid (see above).

 

  • Juzgado de lo Social núm. 31 Barcelona

11 June 2019, Deliveroo: The decision holds that 10 riders have an employment relationship. [A critical comment by Professor E. Rojo (Spanish) here].

 

  • Juzgado de lo Social núm.11 de Barcelona

29 May 2018Take Eat Easy: the decision holds that the services rendered through the platform describe a subordinate relationship. The plaintiff have carried out their activity within an employment relationship under the control of the employer, subjected to a workday, planning annnual leave and perceiving some amounts that can only be classified as salary, using backpacks and mobile terminals given by the company,  [A critical comment in this blog (Spanish) here].

 

  • Juzgado de lo Social núm. 1 Gijón

20 February 2019, Glovo: There are numerous evidences that show that between the riders and the company there is a real subordination: there are work orders and standardized processes to carry out the service which, at the same, show that they haven’t the freedom of the independent contractors. Thus, the setting of a working day, days of rest, the forecast of cases of suspension of the provision of services.

The intended «freedom» to choose hours or time slots, depends on a scoring system, which means that the rider is forced to comply with business requirements if he wants to set up a working time that is profitable for him. The flexibility that the company alleges becomes a way to make riders compete each other to achieve the best hours, that are not the most compatible with their personal life, but the company considers more profitable or high demanding. There is a control on the execution of the service done by the riders, not direct, but through the application itself and location systems. This control serves to set the remuneration and to distribute the services among the different riders based on business efficiency criteria. Another clear evidence of this subordination is that the company may end the relationship based on disciplinary grounds [A critical comment by Professor E. Rojo (Spanish) here].

 

  • Juzgado de lo Social núm. 6 de Valencia

10 June 2019, Deliveroo: The decision holds that the services rendered through the platform by 97 riders describe a subordinate relationship [A critical comment by Professor E. Rojo (Spanish) here].

1 June 2018Deliveroo: the decision holds that the services rendered through the platform describe a subordinate relationship. The judgement rules that admitted the voluntariness of the services provided, can not but conclude that there are given in the concrete assumption the characteristic notes of the employment relationship, since the provision of services of the rider in favor of the platform, presents traits that are only conceivable in dependent work. [A critical comment in this blog (Spanish) here].

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Back to Summary

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France

  • Cour d’appel de Paris

– 10 January 2019, Uber: The Cour d’appel de Paris holds that the driver was not free to choose his customers, because the platform «centralizes» requests, and assigns them to his drivers via algorithms. In addition, regarding rates, the judgment states, «it must be noted that these are contractually fixed by means of these algorithms by a predictive mechanism, imposing on the driver a particular route of which he has no free choice». At the same time, Uber reserves the option to adjust prices if the driver has chosen an «inefficient route». The Cour d’appel de Paris finds that Uber gave «instructions» to the driver, «and controlled the application». Among the directives received were those of «following the GPS instructions of the application», «refraining from having certain conversations» with the passengers, or not accepting tips from them.

Regarding the control of the activity of drivers, it is clear that the Uber application exercises one in terms of acceptance of rides, since after 3 rejections of requests, the platform sends the following message «Are you still here?» And reserves the right to disable or restrict the use of the application. This system has the effect of encouraging the driver to remain connected to wait for a ride and, therefore, to be constantly available to Uber during the connection, without being able to really choose freely, as would an independent driver, the ride more convenient. The fact that the driver was able to choose the days and hours of work does not exclude the existence of a subordinate work relationship. When a driver connects to the Uber platform, integrates into a service organized by this company, which gives him directives, controls the execution and exerts a power of sanction. There is sufficient evidence to hold that there is a subordinated relation when connected to the Uber platform. [A critical comment by Professor E. Rojo (Spanish) here; and Pujol (French), here].

13 December 2017 (I wasn’t able to find the decision), LeCab: dismissing the appeal imposed by the company LeCab against the decisions of the Conseil de Prud’hommes declares the worker status of a driver who was registered as self-employed. Specifically, holds that the driver was subject to a single employer and that, in addition, ‘he had no influence or power of decision over the rate policy imposed on him’, and therefore he must work ‘only with the technical means that had been provided to him (…), had no control over the timing of the activity and was an integral part of a service organized under the name LeCab without any real initiative from him’. The decision understands that the company had no ‘other purpose than artificially creating an appearance of collaboration between a service provider and a self-employed worker and, ultimately, disguising the reality which would otherwise lead to a paid employment relationship’. [A critical comment in this blog (Spanish) here].

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  • Cour de Cassation

28 November 2018Take Eat Easy: the court reviews the criteria of the Cour d’appel de Paris decision 20 April 2017 (see below).  Subordination is characterized by the performance of work under the authority of an employer who has the power to issue orders and directives, to supervise the execution thereof and to punish the failings of his subordinate. The Cour d’appel de Paris violates the labor code holding that a rider does not justify a contract of employment, while it appears that the application was equipped with a geo-tracking system allowing the company to monitor his position in real time and to record the total number of kilometers traveled, and that the company had a power of sanction him. [A critical comment by Professor E. Rojo (Spanish) here; V. De Stefano (English) here; E. Pujol (French), here].

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Nederland

  • Rechtbank Amsterdam

– (2) 15 January 2019 (198 / 210), Deliveroo: Riders are not independent contractors and Deliveroo falls under the scope of the professional goods transport collective barganing agreement. Following the press note of the Rechtbank «The meal delivery service decided in early 2018 not to extend all employment contracts with delivery personnel. Instead, delivery staff started working for the company as a independent contractor in accordance with so-called partner agreements. According to Deliveroo, deliverers were given a lot more freedom within the new agreement to give substance to their work. The relationship between Deliveroo and the deliverers has not changed significantly with the introduction of the new contract form. Among other things, it is important that the partner agreement is a standard contract that has been drawn up completely and unilaterally by Deliveroo and is not negotiable. The judge ruled that within the legal relationship there is still a relationship of authority between the company and the delivery staff. The digital systems that Deliveroo uses for scheduling the delivery staff and the delivery of meals play an important role. As a result, in practice, the freedom of the delivery staff is considerably less than the partner agreement suggests» (more about it here).

 

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Switzerland

  • Tribunal des prud’hommes de Lausanne

New! 5 May 2019, Uberpop: The Tribunal des prud’hommes de Lausanne order Uber to compensate a driver for unfairly dismissed because he’s not an independent contractor and therefore should enjoy the same rights as a taxi driver who has a contract with the taxi company (I wasn’t able to find the ruling).

 

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United Kingdom

  • Supreme Court United Kingdom

13 June 2018Pimlico Plumbers Ltd & Anor v Smith: confirms the decision of the Court of Appeal (see below). «The tribunal was clearly entitled to hold, albeit in different words, that the dominant feature of Mr Smith’s contracts with Pimlico was an obligation of personal performance. To the extent that his facility to appoint a substitute was the product of a contractual right, the limitation of it was significant: the substitute had to come from the ranks of Pimlico operatives, in other words from those bound to Pimlico by an identical suite of heavy obligations. It was the converse of a situation in which the other party is uninterested in the identity of the substitute, provided only that the work gets done. The tribunal was entitled to conclude that Mr Smith had established that he was a limb (b) worker – unless the status of Pimlico by virtue of the contract was that of a client or customer of his». [A critical comment in this blog (Spanish) here].

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  • Court of Appeal

19 December 2018, Uber v Aslam & Others: The Court of Appeal, by a majority, upholds the decisions of the Employment Tribunal and the Employment Appeal Tribunal (see below).

The fact that someone signed a document will be relevant evidence, but it is not conclusive where the terms are standard and non-negotiable and where the parties are in an unequal bargaining position. The terms of the Agreement negativing any agreement to perform services for Uber London Limited (ULL) can be disregarded in accordance with the principles established in Autoclenz Ltd v Belcher.

Autoclenz shows that, in the context of alleged employment (whether as employee or worker), (taking into account the relative bargaining power of the parties) the written documentation may not reflect the reality of the relationship. It is open to an employment tribunal to disregard any terms of a written agreement between an employer and an employee (but also, it is clear, a worker) which are inconsistent with the true agreement between the parties. What the true agreement is may be gleaned by examining all the circumstances, of which the written agreement is only a part. Tribunals should accordingly take a realistic and worldly-wise approach to deciding whether that is the case. This is particularly so where the issue is the insertion of clauses which are subsequently relied on by the inserting party to avoid statutory protection which would otherwise apply.

The majority hold that the written contractual terms do not reflect the practical reality of the relationships and can therefore be disregarded in accordance with the principle established in Autoclenz (Lord Justice Underhill, dissenting, holds that there was no inconsistency between the written terms and the working arrangements). Acceptance of the request by the driver means that, subject to the right of the driver and the passenger to cancel, the driver is expected to proceed to collect the passenger from the notified location and to complete the journey. The “reality” is that at that stage there is an obligation on the driver to fulfil that expectation. The contractual documentation states that, at that stage, there is a contract between the driver and the passenger but that cannot be correct as vital elements of any such contract are missing. The driver does not know at that point a fundamental fact, namely the passenger’s destination, as, according to the Employment Tribunal (ET), he only obtains that information either directly from the passenger or via the App at the moment of pick up.

The passenger has no contract to compel the driver to pick up him or her. The contract at the point of acceptance of the request must be with ULL. The request is communicated to the driver by ULL and is accepted by the driver in responding to Uber.

In relation to the factual aspects the Autoclenz “reality” and “worldly wise” approach applies. There is a contract with ULL for the reasons we set out in this judgment. The terms are those fulfilling the expectation, on the driver’s acceptance of the request from ULL, that the driver will proceed to collect the passenger from the notified location and to complete the journey and are the same as those found by the ET as a matter of fact.

The statutory position strongly reinforces the correctness of the ET’s conclusion that the drivers were providing services to Uber (specifically to ULL), not the other way round. There is a high degree of fiction in the wording (whether in the 2013 or the 2015 version) of the standard form agreement between UBV and each of the drivers.

The majority agree with the ET’s finding at paragraph 92 that “it is not real to regard Uber as working “for” the drivers and that the only sensible interpretation is that the relationship is the other way round. Uber runs a transportation business. The drivers provide the skilled labour through which the organisation delivers its services and earns its profits.”

The majority agree with the ET that at the latest the driver is working for Uber from the moment when he accepts any trip. The point which we have found much more difficult, as did Judge Eady QC in the (Employment Appeal Tribunal) EAT, is whether the driver can be said to be working for Uber when he is in London with the App switched on but before he has accepted a trip. In the end, like Judge Eady, we take the view that the conclusion in paragraph 100 was one which the ET were entitled to reach.

Even if drivers are not obliged to accept all or even 80% of trip requests, the high level of acceptances required and the penalty of being logged off if three consecutive requests are not accepted within the ten second time frame justify the ET’s conclusion that the drivers waiting for a booking were available to ULL and at its disposal. If a particular driver had entered into an obligation of the same nature for another entity and also had the rival app switched on then, as a matter of evidence, Uber would be able to argue that that driver was not at Uber’s disposal.

10 February 2017, Pimlico Plumbers Ltd & Anor v Smith: stated that a plumber carrying out jobs at customers’ homes also had to be classified as a ‘worker’, in terms of the right to the minimum wage and rights linked to working time. «Having rejected PP’s [Pimlico Plumbers’] case that Mr Smith had an unfettered right of substitution and did not have to do the work personally, and having found that Mr Smith was contractually obliged to do a minimum number of hours work a week, the ET [Employment Tribunal] concluded and was entitled to conclude in paragraph 52 of its decision, that the degree of control exercised by PP over Mr Smith by virtue of the 2009 Agreement was also inconsistent with PP being a customer or client of a business run by Mr Smith. In particular, the ET was entitled and right to place weight on the onerous restrictive covenants in sub-paragraph 4.4, which, on the face of it, included a covenant in sub-paragraph 4.4.1 precluding Mr Smith from working as a plumber in any part of Greater London for three months after the termination of the 2009 Agreement. Furthermore, although not specifically mentioned in paragraph 53 of its decision, the ET had already set out relevant provisions of the Manual governing the working arrangement binding on operatives, including the renting of PP’s logo’ed vans». [A critical comment in this blog (Spanish) here].

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  • Employment Appeal Tribunal

– 10 November 2017, Uber v Aslam & Others: upholds the decision of the Employment Tribunal of London in Uber v Aslam & Others case (see below) and the Court of Appeal has uphelds this decision (see above).

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  • Employment Tribunal of London

28 de octubre 2016, Uber v Aslam & Others: the Court considers that since the application is on, and is within the territory in which the driver is authorized to work and is available to accept orders, it can be stated that, provided these conditions are met, he/she can be classified as a worker. And, in terms of working time, it understands that it starts as soon as the driver is within that territory, has the application connected and is ready and willing to accept journey tasks; and it ends as soon as one or more of these conditions cease to be met. The Employment Appeal Tribunal and the Court of Appeal have upheld this decision (see above).

5 de enero 2017, Ms M Dewhurst v. Citysprint UK ltd.: has declared that a rider (messenger) must also be classified as a ‘worker’. The interest of this case, among other reasons, lies in the controversy surrounding whether or not the worker’s service has a personal character. Specifically, faced with the company’s argument that their service can be replaced with another person by decision of the rider himself, the Court points out that although it is true that in certain circumstances van drivers and assistants can be replaced, in reality it does not seem that this is admitted in the case of riders. And, although it cannot state whether the van drivers and assistants are workers, it considers that their classification does not rule out the status of worker for the riders. Adding that, in any case, everyone, including an employee, can – in unexpected circumstances – ask someone to help him, but that does not change the fundamental nature of the employment relationship. In the opinion of the Court, the legal test is not whether there is a valid substitution clause, but whether the claimant was hired personally to carry out the work. [A critical comment by Professor E. Rojo (Spanish) here].

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United States

  • State of New York Unemployment Insurance Appeal Board

 12 July 2018, Uber: The Unemployment Insurance Appeal Board of New York State rules that Uber is liable for unemployment benefits for three drivers, along with others who are “similarly situated”:

«While a determination that an employer-employee relationship exists may rest upon evidence that an employer exercises either control over the results produced or over the means used to achieve the results, control over the means is the more important factor to be considered (…). Incidental control over the results produced without further indicia of control over the means employed to achieve the results will not constitute substantial evidence of an employer-employee relationship (…).

The credible evidence establishes that Uber exercises sufficient supervision, direction or control over the three claimants and other similarly situated Drivers. Uber exercises control through its in-person assistance at its Hubs where Drivers are screened, are required to view the orientation onboarding video of essential information, and are required to take Uber’s roadmap test. Uber also provides Drivers with its handbook and signage, and refers Drivers to specific dealerships to lease TLC licensed vehicles.

Uber also exercises control through its Driver App. Uber provides the Driver App and sets up the information that appears on the Driver App; sets the fares charged to Riders; sets the rate of pay to Drivers and the occasional income guarantee; sets the various incentives and promotions; and sets the music, tipping and deactivation policies. Uber assigns the work by dispatching trip requests to the closest individual Driver who must accept the dispatch within Uber’s 15-second mandate. Uber also provides the requisite tools, such as built-in maps on the Driver App and Uber signage. Uber further conducts an occasional «ID check» on the Driver App, and sets the order of Riders’ drop off for UberPOOL.

Uber also exercises control by providing in-person support to Drivers and monitoring Drivers’ performance, solely determining when and how long to deactivate Drivers for failing to meet Uber’s performance standards. Uber fielded complaints and regularly communicated feedback to the Drivers, including the minimum threshold star rating to avoid suspension, and communicated the trip’s most efficient route and the Drivers’ acceleration, braking, and overall speed. Occasionally, Uber reimburses Drivers. Uber handles all the bookkeeping needs, including collecting from Riders, adjusting for mandatory pay deductions, and paying Drivers directly.

The cases at hand are similar to others in which the Court found sufficient evidence of employment relationships regarding limousine and luxury car drivers.

(…) Uber engages only non-staff Drivers. (…) Uber not only guarantees payment for each trip, but occasionally guarantees a specified level of income. Also, (…), Drivers view the «essential» onboarding video; Uber provides Drivers with welcome packets, vehicle placards, and financial incentives and promotions; Uber maintains numerous Driver data and regularly communicates expectations to the Drivers; Uber sets the minimum star-rating threshold performance and utilizes the performance scores and the Riders’ feedback and complaints in deactivating Driver Apps as a result of inability to meet Uber’s satisfactory level of quality; and Uber unilaterally determines whether to collect a Rider’s cancellation fee.

(…) Uber penalized the Driver if too many trip requests were rejected or ignored, Uber imposed a list of acceptable vehicles and the route requested by a Rider or the GPS route, Uber strongly suggested a dress code, Uber supplied placards and lights with its logo, and Uber made an extensive reimbursement of $1,500 to one of the claimants. Additional factors absent from Postmates include Uber’s mandate to view the onboarding video and to take a roadmap test, Uber’s distribution of its handbook, Uber’s imposed tipping and deactivation policies, Uber’s policing of Drivers’ performance, Uber’s continuous feedback to the Drivers, and Uber’s occasional «ID check», income guarantee, and various incentives or promotions.

Although Uber contends that it is merely a technology platform that connects Riders to Drivers, its business is similar in many respects to other more traditional car service companies. Here, the technology merely replaces much of the duties of an employee dispatcher to dispatch a trip request solely to the nearest Driver who may accept the dispatched assignment. Moreover, the record demonstrates that Uber markets its transportation services to Drivers and Riders alike, selects only qualified Drivers, monitors and supervises Drivers’ performance, rewards high performing Drivers, disciplines Drivers who fail to meet Uber’s standards on a temporary or permanent basis, sets the fare prices charged to Riders, and sets the Driver’s fee paid to Uber.

Significantly, Uber mandates each Rider to rate their Driver under Uber’s 5-star rating and give written feedback of the Driver’s performance, which is then utilized to monitor and discipline Drivers, including suspending or terminating their relationship. Effectively, Uber utilizes Riders’ ratings and feedback as one of various tools with which to gauge and otherwise monitor Drivers’ performance including cleanliness, professional attire, and driving manner. The direct consequences and implications of the mandated 5-star rating and feedback demonstrate control. Uber also contends that all controls were mandated by the TLC. However, the record contains ample evidence demonstrating that Uber, once the Drivers report for duty (logged in), exercises or reserves the right to exercise sufficient control beyond regulatory mandates, including its 5-star rating system and list of acceptable cars.

Also, written agreements characterizing drivers as independent contractors are not dispositive of employer-employee relationships, but merely just one of many factors to be considered (…).

The record, as a whole, demonstrates that the claimants and other similarly situated drivers were covered employees for purposes of unemployment insurance».

 

  • United States District Court Northern District of California

11 de marzo 2015 , O’Connor v. Uber Technologies, Inc.: In this case, foreseeing an eventual decision of the CJEU on this matter in the Elite Taxi case, note that the starting basis is the refusal to consider Uber as a technological company but rather as a transport company. Subsequently, based on elements such as the control of the company (on the qualification and selection of drivers) and an ‘economic-realities’ test based on the following factors (which ‘should not be considered in isolation’): ‘1) To what extent the service rendered is an integral part of the employer’s business; 2) The employee’s opportunity for profit or loss depending on his managerial skill; 3) The investments of the employer or employee; 4) Whether the work rendered requires special skills and initiative; 5) The degree of permanence of the relationship; and 6) The degree of control exercised or used by the employer’.

11 march 2015, Cotter v. Lyft.: In similar terms as in O’Connor v. Uber Technologies, Inc. case (see above).

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  • California Labor Comissioner

– 16 june 2015, Berwick v. Uber Technologies Inc. And Raiser: rejected the self-employed status of a driver.

Back to Summary

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B. Independent contractor


Australia

  • Fair Work Ombusdman

7 june 2019, Uber: Following the press note, “The weight of evidence from our investigation establishes that the relationship between Uber Australia and the drivers is not an employment relationship”. “For such a relationship to exist, the courts have determined that there must be, at a minimum, an obligation for an employee to perform work when it is demanded by the employer.” “Our investigation found that Uber Australia drivers are not subject to any formal or operational obligation to perform work,” Ms Parker said. “Uber Australia drivers have control over whether, when, and for how long they perform work, on any given day or on any given week.” “Uber Australia does not require drivers to perform work at particular times and this was a key factor in our assessment that the commercial arrangement between the company and the drivers does not amount to an employment relationship”. “As a consequence, the Fair Work Ombudsman will not take compliance action in relation to this matter.”

 

  • Fair Work Comission

21 December 2017, Mr Michail Kaseris v Rasier Pacific V.O.F: faced with the dismissal of a driver arising from his deactivation from the platform as a result of a low assessment, declares that they should not be classified as ‘workers’. Especially, among other reasons, because the driver has full control over the way he wants to provide the service and because he must provide his own vehicle, smartphone and wireless data plan. It also understands that, without these, he could not provide transportation services of the type he provided; adding that he fully assumed the cost of insurance of the car and wore neither a uniform nor any logos of the company. On the other hand, although the platform establishes the rates, including the minimum fees per trip and the price increase, in the opinion of the FWC they are not ‘overwhelmingly strong’ factors.

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Brasil

  • Superior Tribunal de Justiça

New! 28 August 2019, Uber: «The drivers haven’t a hierarchical relationship with the company Uber because their services are provided on an occasional basis, without pre-established hours and do not receive fixed salary, which makes the employment relationship between the parties uncharacteristic». Therefore they should bring future legal disputes to a civil court, not the labor court.

 

  • 37ª Vara Do Trabalho de Belo Horizonte

30 January 2017, Uber: Subordination is not defined by the driver’s need to be well evaluated to remain active on the platform. The company has no interference in the evaluation made by the users of the platform and, therefore, it is a risk assumed by both contracting parties.

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  • 12ª Vara Do Trabalho de Belo Horizonte

30 May 2017, Uber:

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  • 43ª Vara Do Trabalho de Belo Horizonte

20 July 2017, Uber: The app establishes a link between the costumer and the driver and does not distort his autonomy.

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Chile

  • Segundo Juzgado de Letras del Trabajo de Santiago

14 July 2015,Thompson con Uber Chile Spa (references: Rit O 1388-2015): they have absolute freedom to connect or disconnect to the system as well as to accept or not the request. There are bonuses or incentives for drivers who connect on key dates, which does not qualify as an employment relationship.

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España

  • Tribunal Superior de Justicia de Madrid (Sala de lo Social)

19 September 2019, Glovo: Upholds the decision of the Juzgado de lo Social núm. 39 de Madrid3 September 2018  (see below) [A critical comment by Professor E. Rojo (Spanish) here].

 

  • Juzgado de lo Social núm. 1 de Salamanca

14 June 2019, Glovo: The decision holds that the services rendered through the platform by 1 rider describe an «economically dependent self-employed» relationship (so-called “trabajadores autonónomos económicamente dependientes” – TRADE – in Spanish).

 

  • Juzgado de lo Social núm. 24 de Barcelona

29 May 2019, Glovo: This ruling mainly follows the arguments of the one dated on 21 May.

21 May 2019, Glovo: As the Labor’s Inspection report stated for that case, there’s no employment relationship because the riders chose the itinerary and the modes of transport and they assume the expenses. They do not have a certain area and choose the days and working times. They also may reject an order and they don’t have to communicate their annual leave to the company. Although rates are established by the company, the fact that they charge their services by order also contributes to this opinion.

 

  • Juzgado de lo Social núm. 4 de Oviedo

25 February 2019, Glovo: The rider claims for an economic compensation for what he thinks are hours settled in the contract and not paid (there’s no discussion about his employment status). The judgment doesn’t uphold the rider’s claim, because the hours agreed only refers to a maximum period of working time and at the end depends on the services executed. «The price of each service carried out by the rider is fixed each time a user requests such service and is given by the distance traveled, as well as by the time it takes to perform the service.» In addition, it also highlights that «the ‘economically dependent self-employed’ [so-called “trabajadores autonónomos económicamente dependientes” – TRADE – in Spanish see below] is free to organize the provision of services and the schedule is set by him». It is also stated that: «there is no exclusivity and the professional has total freedom to collaborate with other platforms.» Therefore, the hours agreed only refers to a maximum period of working time, and any increase should be voluntarely accepted [A critical comment by Professor E. Rojo (Spanish) here].

 

  • Juzgado de lo Social núm. 17 de Madrid

– 11 January 2019, Glovo: The rider («Glover») is not consider as a worker but «economically dependent self-employed» (so-called “trabajadores autonónomos económicamente dependientes” – TRADE – in Spanish). By virtue of section 11 Self-Employed Workers’ Statute (Act 20/2007), this category refers to those who usually, personally and directly carry out an economic or professional activity for income purposes receiving 75% (or more) of their income from one single client or independent contractor. The judgement states that the rider is not obliged to do a minimum number of hours work a week, is free to accept the service and has full control over the way he wants to provide the service, he asumes the risk (and is the owner of the vehicle) [A critical comment in this blog (Spanish) Here]

 

  • Juzgado de lo Social núm. 39 de Madrid

3 September 2018Glovo: The rider is not considered as a worker, because has the full control over his activity. He choses the orders that interested him and rejected those he did not want, freely decided the route to follow to the destination, had no obligation to start or end his services at a certain time, the Company did not impose the type or number of orders he had to do nor the route he had to follow. The GPS geolocator was not an instrument of control of the Company, but the way of counting the mileage for its subsequent payment. [A critical comment in this blog (Spanish) here and by Professor E. Rojo (Spanish) here].

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France

  • Cour d’appel de Paris

20 April 2017, Take Eat Easy: States that the riders of the Take Eat Easy platform cannot be classified as workers because, in essence, the service provider is limited to providing an isothermal box, the messenger has wide freedom to choose when he wants to work (without having to provide justification) and because although at first sight the existence of warnings (‘strikes’) depending on the rendering of the service could suggest the existence of a disciplinary power, this is not sufficient to characterize the relationship as subordination. Nevertheless, these Criteria have been reviewed by the Cour de Cassation decision 28 november 2018 (see above).

12 october 2017, Take Eat Easy: The total freedom to work or not benefited the plaintiff, which allowed him, without having to justify it, to choose each week his days of work and his number without being subject to any duration of work or to any fixed or daily schedule. The plaintiff has not proven the conditions that place him in a relationship of subordination with respect to the company, and especially in a permanent legal subordination bond.

9 November 2017, Deliveroo: In similar terms as in the Take Eat Easy case. [A critical comment by Professor E. Rojo (Spanish) here].

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  • Conseil de Prud’hommes de Paris

29 January 2018, Florian Ménard vs. SAS Uber France, Uber B V: Denies the salaried status to a driver because «no control of working hours is carried out by the UBER Company on the passenger vehicle drivers and that these drivers are under no obligation of presence or duration of connection». In addition, the driver, owner of the vehicle, was free to work according to the schedules and days that suited him; and is not under an obligation of presence or duration of connection, being able to disconnect when it deems convenient. So «this total liberty of organisation enjoyed by Mr Ménard already sets up an obstacle to acknowledging an employment contract.»

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Italia

 

  • Corte di Appello di Torino

– 11 January 2019, Foodora: The Corte di Appello (Court of Appeal), doesn’t uphold the decision of the Tribunale Ordinario di Torino (7 May 2018 decision, see below). Although the riders are technically «independent contractors» (there is no subordination relationship), a new category (tertium genus) is created («etero-organizzazione»). This means that the relationship remains autonomous with the application of the protection of subordinate work (safety and hygiene, direct and deferred remuneration, time limits, holidays and social security). Therefore, their salary should be established in accordance to logistics & freight transport sector collective bargaining agreement. [A critical comment by Professor E. Rojo (Spanish) here].

 

  • Tribunale Ordinario di Torino

7 May 2018, Foodora: delivery riders are self-employed contractors. [A critical comment by A. Aloisi here].

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  • Tribunale di Milano

10 september 2018, Foodinho: The applicant was not obliged to observe a fixed work schedule imposed by the company, nor should it be available for it, so it can not be considered that it has been included permanently in the business organization. In addition, the appellant used his own vehicle for deliveries and did not receive a fixed and predetermined monthly rate, but variable, depending on the quantity and type of deliveries made month by month and, therefore, does not relate to the time available, but for the results achieved. Considering the elements of fact illustrated, it is believed that in the employment relationship between the parties there are no symptomatic signs of sufficient and unambiguous subordination.

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United Kingdom

  • High Court of Justice Queen’s Bench Division Administrative Court

5 December 2018, Independent Workers’ Union of Great Britain (IWGB) v. RooFoods Limited T/A Deliveroo: riders’ human rights had not been breached and that the riders were not in an “employment relationship” in the context of European human rights law. Confirms the decision of the Central Arbitration Committee (see below).

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  • Central Arbitration Committee

14 November 2017 , Independent Workers’ Union of Great Britain (IWGB) v. RooFoods Limited T/A Deliveroo: declares the personal character of the service in relation to a collective union claim. In this case, as a result of the contractual changes by Deliveroo, allowing the substitutions of the riders before or after having accepted an assignment, the CAC has decided against the employment nature of the work because this power of substitution establishes a central and insurmountable difficulty to recognizing the condition of worker. In turn, the issue of the uniform or the logos of the application also acquires a relevance for denying the employment nature. [A critical comment by Professor E. Rojo (Spanish) here].

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United States

  • National Labor Relations Board

– 16 April 2019, Uber Technologies Inc.: The U.S. labor board general counsel’s office said in an advisory memo (released May 14), that drivers for ride-hailing company Uber Technologies Inc. are independent contractors and not employees.

 

  • U.S. Court of Appeals for the Ninth Circuit

2 May 2019, Jan-Pro Franchising International, INC.: «Given the strong presumption of retroactivity, the emphasis in Dynamex on its holding as a clarification rather than as a departure from established law, and the lack of any indication that California courts are likely to hold that Dynamex applies only prospectively, we see no basis to do so either».

 

  • Supreme Court of California

30 April 2018, Dynamex operations West, Inc y Charles Lee et al. The Supreme Court of California rejects the previous test and set a more restrictive one called “ABC” test. From now on, «in determining whether, under the suffer or permit to work definition, a worker is properly considered the type of independent contractor to whom the wage order does not apply, it is appropriate to look to a standard, commonly referred to as the “ABC” test, that is utilized in other jurisdictions in a variety of contexts to distinguish employees from independent contractors. Under this test, a worker is properly considered an independent contractor to whom a wage order does not apply only if the hiring entity establishes:

(A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;

(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and

(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity».

[A critical comment by Professor E. Rojo (Spanish) here].

New! The Assembly bill (AB) 5, codifies Supreme Court of California decision establishing the «ABC test» to determine whether a worker is an independent contractor or an employee.

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  • United States District Court Northern District of California

8 February 2018, Raef Lawson, v. Grubhub, Inc.: Raef Lawson, the plaintiff, is indeed an independent contractor while driving and delivering food for Grubhub: «After considering all of the Borello factors as a whole in light of the trial record, the Court finds that Grubhub has satisfied its burden of showing that Mr. Lawson was properly classified as an independent contractor. While some factors weigh in favor of an employment relationship, Grubhub’s lack of all necessary control over Mr. Lawson’s work, including how he performed deliveries and even whether or for how long, along with other factors persuade the Court that the contractor classification was appropriate for Mr. Lawson during his brief tenure with Grubhub». [A critical comment in this blog (Spanish) here].

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  • United States District Court for the Eastern District of Pennsylvania

11 April 2018, Razak v. UberBlack: (following the “Donovan” factors) rules that the drivers o the UberBLACK service are independent contractors and not the company’s employees under federal law. Specially because the fact that “Uber does exercise some control when UberBLACK drivers are Online does not convert UberBLACK drivers into employees”; thus, in this case, “the degree of the alleged employer’s right to control the manner in which the work is to be performed” — weighs heavily in favor of ‘independent contractor’ status”. On the other hand, the fact that drivers have the opportunity to choose a greater profit by not accepting trip requests, means that they “were free to make money elsewhere (even while actively remaining Online the Uber app to assess whether, for example, there was any “surge” pricing). Thus, “these facts strongly indicate that [they] are independent contractors pursing their own entrepreneurial opportunities in search of profit”. And the facts that “they must purchase (or lease) their own expensive vehicles” and that “there is no permanence of the working relationship whatsoever, unless the driver wants it” also reinforce this conclusion.

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  • District Court of Appeals of Florida, 3th District

1 February 2017, McGillis v Department of Economic Opportunity, Uber: «Darrin E. McGillis, a former Uber driver, appeals the decision of the Florida Department of Economic Opportunity concluding that an Uber driver is not an employee for the purpose of reemployment assistance. Because the parties’ contract explicitly provides that an Uber driver is not an employee and the nature of the parties’ relationship was consistent with this classification, we agree. We therefore affirm the Department’s order denying McGillis’ claim for reemployment assistance».

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