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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: Argentina, Australia, Belgium, Brazil, Chile, France, Germany, Italy, Nederland, Panama, Spain, Switzerland, United Kingdom, United States & Uruguay).

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

• Argentina 
• Australia
• Belgique 
• Brasil
• Canada 
• Chile
• Deutschland 
• España New!
• France 
• Italia
• Nederland 
• Switzerland 
• United Kingdom 
• United States 
• Uruguay 

B. Independent Contractor

• Australia
• Belgique 
• Brasil 
• Chile
• Deutschland
• España
• European Union Court of Justice 
• France 
• Italia
• New Zealand
• Panama 
• United Kingdom
• United States 

[updated: 2023/07/19]

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A. Employment relationship

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Argentina

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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». [Critical comments by Professor E. Rojo (Spanish) here; and V. De Stefano here].

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Belgique

• Commission Administrative de règlement de la relation de travail (Administrative Commission on the Employment Relationship)

– 26 October 2020, Uber: An Uber driver is an employee.

[I would like to thank Mr. M. Wouters, from the University of Leuven, for sending me this ruling]

 

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Brasil

• 8a Vara do Trabalho de São Paulo

– 28 August 2018, Loggi: The Court holds that there is an employment relationship between a «driver» (motofretistas e motoristas de van) and Loggi, among other reasons, because recognizing the employment status between the employee of a small transport company and not doing so with the largest in the segment would imply frank and unfair competition between companies, with undue market favoring. The law preserves free competition, but not unfair competition, as is known. Nor is the right to property degraded, since all private property must fulfill its social function.

[I would like to thank Prof. F. Rosenbaum, for sending me this ruling]

 

• 33ª Vara Do Trabalho de Belo Horizonte

– 13 February 2017, Uber: 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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Canada

• Ontario Labour Relations Board

– 25 February 2020, Foodora: the riders are not an independent contractor:

«171. The Board has carefully reviewed the evidence called by the parties using the factors historically considered by the Board from Algonquin Tavern, supra in the interpretation of the statutory definition of dependent contractor. The couriers are selected by Foodora and required to deliver food on the terms and conditions determined by Foodora in accordance with Foodora’s standards. In a very real sense, the couriers work for Foodora, and not themselves.

172. This is the Board’s first decision with respect to workers in what has been described by the parties and the media as “the gig economy”. However, the services performed by Foodora couriers are nothing new to the Board and in many ways are similar to the circumstances of the Board’s older cases. This is not the Board’s first case examining the relationship of couriers. The Board has been tasked with the same questions about dependent contractors in various sectors including transportation and construction. Such cases have always been factbased inquiries that require a balancing of factors. This case is no different in many respects.

173. For the foregoing reasons, the Board finds that Foodora couriers are dependent contractors and must be treated as such under the Act. As the evidence bears out, couriers more closely resemble employees than independent contractors.

174. There remain outstanding issues between these parties about the eligible voters on the list. The matter is referred to the Manager, Field Services».

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

 

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Chile 

• Corte de Apelaciones de Concepción

– 15 January 2021, Pedidos ya Chile: «in order to determine whether the elements of the employment relationship are present, it is necessary to use the indiciarian technique, identifying favourable indications and indications contrary to the existence of an employment contract and deciding whether or not the employment relationship is present in the particular case. The previuos ruling carried out precisely that exercise (…) and in that way concluded that the relationship which it withheld the applicant with Pedidos Ya Chile, was of an employment nature, since it considered that the essential elements of that relationship were established, that is the subordination and dependence (…), as well as the ajenity of services (…); reasoning in which he clearly sets out the arguments on the basis of which he concludes in the resolution».

 

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Deutschland

• Bundesarbeitsgericht (German Federal Labour Court )

– 1 December 2020 (press summary – the decision is not available yet): The ruling founds that crowdworkers or microtaskers can be classified as employees under German employment law [A comment by B. Göepfert and V. Mäurer here]

 

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España

 

• Tribunal Supremo

– 25 september 2020, Glovo: Glovo is not a mere intermediary in the contracting of services between shops and couriers. It is not limited to providing an electronic intermediation service putting in contact consumers (customers) and true self-employed workers, but coordinates and organices the service. It is a company that provides delivery services and courier, setting the price and payment terms of the service, as well as the essential conditions of it. And it is the owner of the essential assets to carry out the activity. For this uses distributors who don’t have their own and autonomous business organization, which provide their service inserted in the employer’s work organization, subject to the direction and organization of the platform, as evidenced by the fact that Glovo establishes all aspects relating to the form and price of the service of collection and delivery of products. The form of provision of the service and its price and method of payment are established by Glovo. The company has established instructions that allow to control how the service is provided. Glovo has established means of control that operate on the activity and not only on the result through the algorithmic management of the service, the evaluations of the distributors and constant geolocation. The delivery person neither organizes the productive activity by himself, nor negotiates prices or conditions with the owners of the establishments it serves, nor does it receive its retribution. The couriers did not have a true capacity to organize his work delivery, lacking autonomy for it. It was subject to the organizational guidelines set by the company. This reveals an exercise of organizational power in relation to the mode of provision of the service and a control of its execution in time real that evidences the concurrence of the dependency requirement of the labor relationship.

To provide these services, Glovo uses a computer program that assigns the services based on the evaluation of each couriers and decisively conditions the theoretical freedom of choice of schedules and to reject orders. Furthermore, Glovo has the power to sanction the couriers for a plurality of different behaviors, which is a manifestation of the managerial power of the employer. Through the digital platform, Glovo carries out a real-time control of the delivery service, and the courier is not able to perform it unlinked from the platform. Due to this, the courier enjoys an autonomy limited to only secondary questions: means of transport to uso and the route.

For all these reasons the Supreme Court concludes that there is an employment relationship (The Court rejects the ruling of the Tribunal Superior de Justicia de Madrid 19 September 2019, see below here). [A critical comment (Spanish) in this post; And by Professor E. Rojo (Spanish) here].

 

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

– New! 4 May 2023, Joyners: Employment relationship of platform caregivers JOYNERS (applying Supreme Court doctrine)

– 22 September 2020, Glovo: based on the 21 February 2020 decision of the same Court, and upholding the decision of Juzgado de lo Social núm. 3 Barcelona 18 November 2019, declares that one courier has an employment relationship.

– 16 June 2020, Deliveroo: The Court upholds the decision of the Juzgado de lo Social núm. 31, dated on 11 June 2019 (see below), declaring that 10 couriers have an employment relationship [A critical comment by Professor E. Rojo (Spanish) here].

– 11 June 2020, Glovo: The court upholds the decision of the Juzgado de lo Social núm. 29 Barcelona, dated on 31 July 2019 (see below), declaring that one rider has an employment relationship

– 12 May 2020, Glovo: The court upholds the decision of the Juzgado de lo Social núm. 26 Barcelona, dated on 30 July 2019, declaring that one rider has an employment relationship.

– 7 May 2020, Glovo: The courts doesn’t upholds the decision of the Juzgado de lo Social núm. 24 Barcelona, dated on 21 May 2019 (see below), and declares that one rider has an employment relationship.

– 21 February 2020, Glovo: The Court rejects the ruling of the Juzgado de lo Social núm. 24 Barcelona, dated on 29 May 2019 (see below), declaring that the rider has an employment relationship, specially because it is clear that there is a subordinate relationship and the rider does not work for himself but under the standards and the terms and conditions of Glovo. [A critical comment (Spanish) here].

 

• Tribunal Superior de Justicia de Castilla y León\Valladolid (Sala de lo Social)

– 17 February 2020, Glovo: The Court does not uphold the decision of the Juzgado de lo Social núm. 1 Salamanca, on 14 June 2019 (see below) and declares that there is a subordinate relationship because, among other arguments used in other Courts, the platform is in contact with the clients and fixes the price of the service. [A critical comment by Professor E. Rojo (Spanish) here].

 

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

– 30 november 2020, Glovo: The decision (as previous rulings) holds that 69 couriers have an employment relationship.

– 3 February 2020, Glovo: The Court upholds the ruling of the Juzgado de lo Social núm. 1 Madrid, dated on 4 April 2019 (n130/2019) – see below – , declaring that the rider has an employment relationship. [A critical comment by Professor E. Rojo (Spanish) here].

– 17 January 2020, Deliveroo: The Court upholds the ruling of the Juzgado de lo Social núm. 19 Madrid, dated on 22 July 2019, declaring that more than 500 riders have an employment relationship. [A critical comment by Professor E. Rojo (Spanish) here].

– 18 December 2019, Glovo: The Court upholds the ruling of the Juzgado de lo Social núm. 33 Madrid, dated on 11 February 2019 (see below), following his previous decision on 27 November 2019. [A critical comment by Professor E. Rojo (Spanish) here].

– 27 November 2019, Glovo: The Court, in a decision agreed by all of his members, does not uphold the decision of the Juzgado de lo Social núm. 17 de Madrid, on 11 January 2019 (see below), and holds the that there is a subordinated relationship mainly for the following reasons: written documentation may not reflect the reality of the relationship; the platform establishes unilaterally the rates; the parts initially formalized an independent contractor relationship and changed to a «economically dependent self-employed» one (so-called “trabajadores autónomos económicamente dependientes” – TRADE – in Spanish) without any substantial change in the fact situation; there is a subordinated relationship because the work of the rider is integrated into the Glovo’s business and not an independent operation; and, finally, because it’s obvious that the app has a fundamental economical relevance (specially if it is compared to the residual means provided by the rider). [Critical comments by Professor E. Rojo (Spanish) here; and Professor A. Baylos (Spanish) here].

 

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

– 25 July 2019, Glovo. The Court upholds the ruling of the Juzgado de lo Social núm. 1 Gijón, dated on 20 February 2019 (see below). It also argues that 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. [Critical comments by Professor E. Rojo (Spanish) here].

 

• Juzgado de lo Social núm. 4 Santander

– 20 November 2020, Glovo: The decision declares that 85 couriers have a subordinate relationship (and not a «economically dependent self-employed» one – so-called “trabajadores autónomos económicamente dependientes” – TRADE – in Spanish). [A critical comment by Professor E. Rojo (Spanish) here].

 

• Juzgado de lo Social núm. 2 Zaragoza

– 27 April 2020, Deliveroo. The decision, following the Tribunal Superior de Justicia de Madrid decision, 17 January 2020(see above) holds that a rider is not an independent contractor.

 

• 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].

This decision has been confirmed by Tribunal Superior de Justicia de Madrid (Sala de lo Social) on 3 February 2020 (see above).

 

• 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).

The decision dated on 4 April 2019 (n130/2019) has been upholded by Tribunal Superior de Justicia de Madrid (Sala de lo Social) on 18 December 2019 (see above).

 

• Juzgado de lo Social núm. 24 Barcelona

– 18 November 2020, Deliveroo: the decision, based on the Tribunal Superior de Justicia de Madrid judgement of 17 January 2020 and the Spanish Supreme Court 5 september 2020 decision (see above), holds that the services rendered through the platform by more than 700 couriers describe a subordinate relationship.

 

• Juzgado de lo Social núm. 21 Barcelona

– 7 September 2020, Deliveroo: the decision, based on the Spanish Supreme Court rulings previous to 25 september 2020 decision (see above), holds that the services rendered through the platform by one courier describe a subordinate relationship.

 

• Juzgado de lo Social núm. 3 Barcelona

– 18 November 2019, Glovo: There’s an employment relationship (and not a «economically dependent self-employed» one – so-called “trabajadores autónomos económicamente dependientes” – TRADE – in Spanish) mainly for the following reasons: written documentation may not reflect the reality of the relationship; starting from the Judgment of the EU Court (Grand Chamber) of 20 December 2017, Élite Taxi, and the EU Court’s case law that has established a criteria for determining the status of a worker and the Spanish Supreme Court one, there is a subordinated relationship because the work of the rider is integrated into the Glovo’s business and not an independent operation; and, finally, because the means provided by the rider are residual. [A critical comment by Professor E. Rojo (Spanish) here].

 

• Juzgado de lo Social núm. 11 de Barcelona

– 29 May 2018, Take 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. 29 Barcelona

– 30 July 2019, Glovo: the decision holds that the services rendered through the platform describe a subordinate relationship.

 

• 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. 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].

This decision has been confirmed by Tribunal Superior de Justicia de Asturias (Sala de lo Social) on 25 July 2019 (see above).

 

• 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 2018, Deliveroo: 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].

 

• Basque Country Parliament

– 12 December 2019: Non binding resolution (Proposición no de ley) of the Parliament of the Basque Country Region against the precarious work derived from the platform economy and promoting the regular work and the fight against the false independent contractors.

[I would like to thank Professor E. Rojo for sending me this resolution]

 

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France

• Cour de Cassation

– 4 march 2020, Uber: The Court upholds the ruling on 10 January 2019 by the Cour d’appel de Paris (see below) declaring that there’s a relationship of permanent legal subordination with regard to the principal.

«The Court of Appeal has therefore arrived at the conclusions that Mr. X… held a fictitious status as an independent worker and that Uber BV sent him instructions, supervised performance and exercised the power to sanction, without distorting the terms and conditions of the agreement, and without The Court of Appeal vitiating the ruling in the manner alleged in the pleadings, inoperative in its seventh, ninth, and twelfth branches and has justified its decision according to law».

[A critical comment by Professor E. Rojo (Spanish) here; and Professor A. Baylos (Spanish) here; there’s a Spanish and English version of this ruling].

 

– 28 November 2018, Take 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].

 

 

• Cour d’appel de Toulouse

– 29 January 2021, Take Eat Easy: The court, as the «the conseil de prud’hommes de Toulouse» previously stated, found that services provided cannot be classified as independent: «Finally, the court noted the economic dependence in which the couriers, including MA, were placed on the company Take Eat Easy: the documents produced by the respondent establish the absence of any freedom of the couriers in setting prices, which were unilaterally determined by the company and sometimes modified without notice, the payment of the journey was moreover made between the customer and the company, which took its commission and then decided on the part due to the courier, finally the couriers n ‘ did not have access to the client file and were prohibited from taking clients’ contact details. These elements formally contradict the appellants’ thesis that couriers such as Mr. A. were self-employed, since they were unable to establish themselves and have a clientele for which they would have controlled the rates».

[I would like to thank Prof. B. Delmas sending me this ruling]

 

• Cour d’appel de Douai

– 10 February 2020, Click and Walk: The court found that services provided cannot be classified as independent. The existence of a salaried employment relationship does not depend on the will expressed by the parties, nor on the denomination that they have given to the convention, but de facto conditions under which the professional activity is exercised. It is essential for employment contract, the line of subordination is characterized by the execution of a job under the authority of an employee who has the power to give orders and directives, to control their execution and to sanction the breaches of his subordinate. The judge must appreciate in concrete each situation which is presented, and should not be limited to contractual clauses. In this case, the company gives instructions and directives which can be extremely precise. The company then checks the proper execution of the service, in order to check that it corresponds to the orders of his client.

 

• Cour d’appel de Paris

– 18 February 2021, Bolt Services France: The court, as the «the conseil de prud’hommes de Paris» previously stated, found that services provided cannot be classified as independent: «The qualification of employment contract being of public order and therefore unavailable, it cannot be waived by convention. Thus, the existence of an employment relationship does not depend on the will expressed by the parties or on the denomination they have given to their agreement but the de facto conditions under which is exercised activity, the judge’s office being to assess the body of evidence submitted to him to say whether this qualification can be be retained». It has been proved that «the company Bolt Services France could fully discretion suspend their access to the platform and thus deprive them of the free choice to connect to it»

[I would like to thank Prof. B. Delmas sending me this ruling]

– 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, Voxtur: dismissing the appeal imposed by the company 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]. [I would like to thank M. Vicente, from Strasbourg University, for sending me this ruling]

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• Conseil de Prud’hommes de Paris

– 20 December 2016, Voxtur: The Conseil de Prud’hommes de Paris holds that there is an employment relationship because, among other reasons, the driver has no chance to find his own clients. The fact that the company prohibits from marauding and to work for other companies, evidences that the driver has no chance to work for others than Voxtur.

[I would like to thank Prof. A. Aloisi, from the IE University, for sending me this ruling]

 

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Italia

• Corte di Cassazione

– 24 January 2020: Following Profs. A. Aloisi and V. de Stefano «The Court decided to apply a 2015 legislation that extends employment and labour protection to all workers whose work is organized by someone else, which in Italy is called lavoro etero-organizzato».

 

• Tribunale di Palermo

– 24 November 2020, Foodhino (Glovo): the courier is an employee, because (among other reasons) the service was managed and organized by the platform (organized solely by the employer and in his sole interest) in the sense that only by accessing and subjecting to its rules could perform the employment duties [A comment by. Prof. A. Aloisi here] 

 

• Tribunale Ordinario di Bologna

– 31 December 2020, Deliveroo: the court has found that the algorithm is not neutral and has a discriminatory behavior with assigning working slots [A comment by G. Geiger here; Prof. Rojo (Spanish) here; and Prof. Baylos (Spanish) here] 

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Nederland

• Gerechtshof Amsterdam (Amsterdam Court of Appeal)

– 16 February 2021, Deliveroo: All the circumstances taken together, the Court finds that only the freedom given to the delivery drivers with regard to the performance of the work is a circumstance which 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 time (with legal suspicions), as well as the other circumstances mentioned, indicate more the presence of an employment contract than the absence thereof. Moreover, the freedom given to the delivery drivers with regard to the performance of the work is not incompatible with the classification of the contract as an employment contract.

The court has still asked whether a distinction should be made between the different types of contract agreements that Deliveroo has applied from the beginning of 2018. Until 21 September 2018, it was stipulated that the delivery drivers must have a VAT number (which could indicate entrepreneurship earlier, and therefore the absence of an employment contract). On the other hand, Deliveroo used the SSB system in (most of) that time, which allowed a greater degree of influence on the working methods of the delivery drivers. Since the introduction of the possibility to conclude only a Regular or an Unlimited contract, more than two thirds of delivery drivers work ‘hobbyally’, and therefore – by the standards of turnover tax – not as entrepreneurs. On the other hand, the approximately one third of delivery drivers who work on the basis of an Unlimited contract can be assumed to be able to earn more than € 603.92 per month (40% of the minimum wage) and therefore, according to the assumption, are more dependent on the earnings obtained from Deliveroo than their hobby colleagues for their livelihood. The court has considered that, in view of the level of income (€ 11.00 to € 13.00 per hour), it is not possible to make adequate provisions in case of incapacity for work and unemployment. It is therefore precisely this group that has a greater need for the contract to be classified as an employment contract, since labour law does granting them those provisions. All in all, the Court considers that, in view of the above arguments, there is insufficient reason to distinguish between the different contracts and thus in the qualification of the various delivery drivers as they operate from the beginning of 2018.

 

• Rechtbank Amsterdam (District Court of 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

– 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

– 19 February 2021, Uber v Aslam & Others: (following the press summary): «As on the facts there was no written contract between the drivers and Uber London, the nature of their legal relationship had to be inferred from the parties’ conduct [45 – 46] and there was no factual basis for asserting that Uber London acted as an agent for drivers [50 – 56]. The correct inference was that Uber London contracts with passengers and engages drivers to carry out bookings for it [54 – 56]. In any event, it is wrong in principle to treat the written agreements as a starting point in deciding whether an individual is a “worker” [57, 76]. The Supreme Court considers and explains its previous decision in Autoclenz Ltd v Belcher [2011] UKSC 41 [68 – 69]. The correct approach is to consider the purpose of the relevant employment legislation [70]. That purpose is to give protection to vulnerable individuals who have little or no say over their pay and working conditions because they are in a subordinate and dependent position in relation to a person or organisation which exercises control over their work [71 – 76]. The legislation also precludes employers, frequently in a stronger bargaining position, from contracting out of these protections [79 – 82].

The judgment emphasises five aspects of the findings made by the employment tribunal which justified its conclusion that the claimants were working for and under contracts with Uber [93].

First, where a ride is booked through the Uber app, it is Uber that sets the fare and drivers are not permitted to charge more than the fare calculated by the Uber app. It is therefore Uber which dictates how much drivers are paid for the work they do [94]. Second, the contract terms on which drivers perform their services are imposed by Uber and drivers have no say in them [95]. Third, once a driver has logged onto the Uber app, the driver’s choice about whether to accept requests for rides is constrained by Uber [96]. One way in which this is done is by monitoring the driver’s rate of acceptance (and cancellation) of trip requests and imposing what amounts to a penalty if too many trip requests are declined or cancelled by automatically logging the driver off the Uber app for ten minutes, thereby preventing the driver from working until allowed to log back on [97]. Fourth, Uber also exercises significant control over the way in
which drivers deliver their services. One of several methods mentioned in the judgment is the use of a ratings system whereby passengers are asked to rate the driver on a scale of 1 to 5 after each trip. Any driver who fails to maintain a required average rating will receive a series of warnings and, if their average rating does not improve, eventually have their relationship with Uber terminated [98 – 99]. A fifth significant factor is that Uber restricts communications between passenger and driver to the minimum necessary to perform the particular trip and takes active steps to prevent drivers from establishing any relationship with a passenger capable of
extending beyond an individual ride [100].

Taking these factors together, the transportation service performed by drivers and offered to passengers through the Uber app is very tightly defined and controlled by Uber. Drivers are in a position of subordination and dependency in relation to Uber such that they have little or no ability to improve their economic position through professional or entrepreneurial skill. In practice the only way in which they can increase their earnings is by working longer hours while constantly meeting Uber’s measures of performance [101]. The Supreme Court considers that comparisons made by Uber with digital platforms which act as booking agents for hotels and other accommodation [103 – 108] and with minicab drivers [109 – 117] do not advance its case. The drivers were rightly found to be “workers” [119].».

– 13 June 2018, Pimlico 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 October 2021, Stuart Delivery Ltd v Augustine: «This appeal concerns the status of a courier delivering goods by moped. The question on the appeal is whether an employment tribunal was entitled to find that the claimant, Mr Augustine, was a worker within the meaning of section 230(3)(b) of the Employment Rights Act 1996 («the Act»), and, in particular, that he was a person who undertook to perform work or services personally pursuant to a contract with the respondent, Stuart Delivery Limited (…).

The employment tribunal (…), held that the claimant was a worker. Once the claimant had signed up for a time slot during which he was to be available to deliver goods by moped, he was required to perform those services personally. Furthermore, the claimant’s ability to release a slot to other couriers via the respondent’s app was not a sufficient right of substitution to remove the obligation on the claimant to perform his work personally. The Employment Appeal Tribunal upheld that decision.

The respondent contended that the employment tribunal erred in its understanding of the principles governing the circumstances in which the ability of a person to appoint a substitute to carry out the work means that the person is not under any obligation personally to perform the work. Consequently, it contended, the employment tribunal failed properly to consider whether the extent of the claimant’s right to use a substitute courier for one of his slots meant that he was not required to perform the work personally and so was not a worker for the purposes of the relevant legislation. It contended that the matter should be remitted to the tribunal to re-consider».

The Court of Appeal uphelds the employment tribunal and the employment appeal tribunal decisions arguying that:

«it is reasonably clear what the employment tribunal decided. There was no reference to a right of substitution in the written contract (the GCU). The way the system worked was that the claimant could circulate a notification via Staffomatic on the respondent’s app to other couriers who had signed up with the respondent. The employment tribunal considered that that could not be described as a right on the part of the claimant to send a substitute chosen by himself. Any other courier, already approved by and signed up with the respondent, could opt, if he chose, to fill the unwanted slot. The claimant did not know which courier would be taking up the slot and he could not put forward any given individual to take up the slot. If one of the other couriers did not take up the slot, the claimant would have to work it or face the adverse consequences of missing a slot already described by the tribunal.

In that context, the employment tribunal concluded at paragraph 33.5 that the system could not reasonably be described as amounting to an unfettered right of substitution of the sort that might be regarded as inconsistent with an obligation of personal performance. So far as it was a conditional right of substitution, the tribunal considered that it was conditional upon another courier already on the respondent’s app and with the same mode of transport (and, one could add, subject to the same requirements of having to stay in the area for 90% of the time, not logging of for more than 6 minutes an hour, and not refusing more than one delivery job in order to avoid losing the guaranteed payment and suffering other adverse consequences) agreeing to take up the slot (…)

I note that that conclusion is consistent with the decision of the Supreme Court in Pimlico Plumbers. There, too, the Supreme Court held that the employment tribunal was entitled to conclude that the dominant feature of the contract was an obligation of personal performance and that the facility to appoint a substitute subject to a significant limitation, namely that the substitute came from the ranks of Pimlico operatives, did not negate that. The factual situation in Pimlico Plumbers is broadly similar or analogous to the position here. Any substitute had to come from the ranks of the respondent’s couriers. They too would be subject to the same obligations in reality as the claimant, namely to perform the slot by attending for 90% of the time within the relevant area, not log off the app for more than 6 minutes and not to refuse more than one delivery job or face the consequences of doing so. The respondent was not uninterested in who performed the work. It wanted to ensure that those couriers who took the slot were subject to the same constraints as the claimant to ensure that they actually worked the slots because it wanted to ensure that there were sufficiently reliable couriers available in hot zones at peak time. That is not to say that there is necessarily a «rule» that the right, or ability, to appoint substitutes only from the respondent’s pool of operatives is always inconsistent with an obligation of personal performance. It is simply to recognise that the conclusion reached by the employment tribunal here is one that, in broadly similar circumstances, the courts have accepted is a conclusion that employment tribunals can reasonably reach».

– 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 October 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 January 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

• Superior Court of the State of California – County of San Francisco

– 1 August 2020 (Order), Uber, Lyft: According to the Assembly Bill No. 5, both companies have misclassified their drivers and the order enjoins and restrains from classifying them as independent contractors.

 

• State of New York Court of Appeals

– 26 March 2020, Postmates, Inc.:

«Claimant Luis Vega worked as a Postmates courier in June 2015. Based on negative reviews from customers alleging fraudulent activity, Postmates blocked claimant from using the application. Thereafter, claimant filed for unemployment benefits. In August 2015, the Department of Labor, based in part on a statement of Mr. Vega, initially determined that claimant was an employee of Postmates, requiring that Postmates pay unemployment insurance contributions on Mr. Vega’s earnings, as well as on the earnings of “all other persons similarly employed.

(…) Here, there is substantial evidence in the record to support (…) that Postmates exercised control over its couriers sufficient to render them employees rather than independent contractors operating their own businesses (…). While couriers decide when to log into the Postmates’ app and accept delivery jobs, the company controls the assignment of deliveries by determining which couriers have access to possible delivery jobs. Postmates informs couriers where requested goods are to be delivered only after a courier has accepted the assignment. Customers cannot request that the job be performed by a particular worker. In the event a courier becomes unavailable after accepting a job, Postmates—not the courier—finds a replacement. Although Postmates does not dictate the exact routes couriers must take between the pick-up and delivery locations, the company tracks courier location during deliveries in real time on the omnipresent app, providing customers an estimated time of arrival for their deliveries. The couriers’ compensation, which the company unilaterally fixes and the couriers have no ability to negotiate, are paid to the couriers by Postmates. Postmates, not its couriers, bears the loss when customers do not pay. Because the total fee charged by Postmates is based solely on the distance of the delivery and couriers are not given that information in advance, they are unable to determine their share until after accepting a job. Further, Postmates unilaterally sets the delivery fees, for which it bills the customers directly through the app. Couriers receive a company sponsored “PEX” card which they may use to purchase the customers’ requested items, when necessary. Postmates handles all customer complaints and, in some circumstances, retains liability to the customer for incorrect or damaged deliveries.

Postmates exercises more than “incidental control” over its couriers—low-paid workers performing unskilled labor who possess limited discretion over how to do their jobs. That the couriers retain some independence to choose their work schedule and delivery route does not mean that they have actual control over their work or the service Postmates provides its customers; indeed, there is substantial evidence for the Board’s conclusion that Postmates dominates the significant aspects of its couriers’ work by dictating to which customers they can deliver, where to deliver the requested items, effectively limiting the time frame for delivery and controlling all aspects of pricing and payment».

[I would like to thank Prof. Rojo for sending me this decision].

 

• 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.

 

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Uruguay

• Tribunal de Apelaciones de Primer Turno

– 3 June 2020, Uber: The Court upholds the ruling of the Juzgado Letrado del Trabajo de Montevideo de 6º Turno, dated on 11 November 2019 (see below), declaring that the driver has an employment relationship. [A critical comment by F. Rosenbaum (Spanish) here].

I would like to thank N. Pizzo and L. de León for notice me about this decision.

 

• Juzgado Letrado del Trabajo de Montevideo de 6º Turno

– 11 November 2019, Uber: The driver is not an independent contractor. [A critical comment by F. Rosenbaum (Spanish) here].

 

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B. Independent contractor

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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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Belgique

• Tribunal de l’Entreprise francophone de Bruxelles

19 January 2019, Uber: Uber drivers are self-employed: «the plaintiffs do not adduce any concrete evidence to support their argument that the service contract concluded between Uber B.V. and the LCV corporations should be reclassified as a employment contract».

[I would like to thank Mr. M. Wouters, from the University of Leuven, for sending me this ruling]

 

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Brasil

• Tribunal Superior do Trabalho

  – 5 February 2020, Uber: The claimant expressly admits the possibility of being «offline», without time limits, a circumstance that indicates the complete and voluntary absence of the provision of the services under examination, which only occurs in a virtual environment. This fact translates, in practice, the author’s wide flexibility to determine his routine, the hours of work, the places where he wants to work and the number of clients he intends to attend per day. This self-determination is incompatible with the recognition of the employment relationship, which has subordination as a basic premise, an element in which the distinction is based on self-employment. If the claimant’s confession regarding the autonomy for the performance of his activities was not sufficient, it is unquestionable in the records that the claimant adhered to the digital intermediation services provided by the defendant, using an application that offers an interface between the previously registered drivers and service users.

• Superior Tribunal de Justiça

– 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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Deutschland

• Landesarbeitsgericht (LAG) München

– 4 December 2019 (Case No. 8 Sa 146/19): Following the English note by J.P. Klimburg, the court held «that a platform worker was not an employee of the platform operator, but left open the possibility of a time-limited employment relationship with the platform end user». More details about it in this English note by Prof. S. Herms and V. Mäurer.

 

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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 Madrid, 3 September 2018  (see below) [A critical comment by Professor E. Rojo (Spanish) here].

And The Supreme Court in a decision of 25 September 2020 has rejected this ruling (see above).

Nevertheless, the Tribunal Superior de Justicia de Madrid in a decision of 7 November 2019 (see above), agreed by all of his members, upholds an opposite opinion.

 

• Juzgado de lo Social núm. 2 de Vigo

– 12 november 2019, Glovo: The decision holds that there is not a subordinate relationship mainly because de rider provides his own vehicle (a car). [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).

This decision has not been upholded by the Tribunal Superior de Justicia de Castilla y León\Valladolid (Sala de lo Social) in the 17 February 2020 decision (see above).

 

• 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.

Both decisions have not been upholded by the Tribunal Superior de Justicia de Cataluña (Sala de lo Social) in the 7 and 12 May 2020 decisions (see above).

 

 

• 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].

This decision has not been upholded by the Tribunal Superior de Justicia de Madrid (Sala de lo Social) in the 27 November 2019 decision (see above).

 

• Juzgado de lo Social núm. 39 de Madrid

– 3 September 2018, Glovo: 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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European Union

European Union Court of Justice

• Order 22 April 2020 (C‑692/19), Yodel Delivery Network Ltd: Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time must be interpreted as precluding a person engaged by his putative employer under a services agreement which stipulates that he is a self-employed independent contractor from being classified as a ‘worker’ for the purposes of that directive, where that person is afforded discretion:

  –        to use subcontractors or substitutes to perform the service which he has undertaken to provide;

  –        to accept or not accept the various tasks offered by his putative employer, or unilaterally set the maximum number of those tasks;

  –        to provide his services to any third party, including direct competitors of the putative employer, and

  –        to fix his own hours of ‘work’ within certain parameters and to tailor his time to suit his personal convenience rather than solely the interests of the putative employer,

  provided that, first, the independence of that person does not appear to be fictitious and, second, it is not possible to establish the existence of a relationship of subordination between that person and his putative employer. However, it is for the referring court, taking account of all the relevant factors relating to that person and to the economic activity he carries on, to classify that person’s professional status under Directive 2003/88  [A critical comment in this blog (Spanish) here; Professor E. Rojo (Spanish) here; V. Stefano and A. Aloisi (English) here; and F. Rosembaum (Spanish) here].

 

 

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France

• Cour d’Appel de Lyon

– 15 January 2021, Uber: the driver is not an employee. [I would like to thank M. Vicente, from Strasbourg University, for sending me this ruling]

 

• Cour d’Appel de Paris

– 17 April 2021, Deliveroo France: the rider is not an employee. Neither geolocation, nor clothing, nor the possibility of sanction, nor the existence of free insurance are arguments to declare the employment relationship.

[I would like to thank Prof. B. Delmas, from Université de Bordeaux, for sending me this ruling]

– 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].

– 7 January 2016, LeCab: There’s no employment relationship and therefore the Cour d’Appel de Paris has no competence to deal with the conflict between the parties.

[I would like to thank Prof. A. Aloisi, from the IE University, for sending me this ruling]

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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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New Zealand

• Employment Court of New Zealand, Auckland

– 17 December 2020, Uber: Uber driver is an independent contractor and not an employee [A critical comment by P. Kiely here]

 

 

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Panama

• Tribunal Superior de Trabajo – Primer Distrito Judicial

– 8 February 2018, TMP: the rider is an independent contractor.

[I would like to thank Mr. Orlando Baso, for sending me this ruling]

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.https://www.linkedin.com/in/orlando-baso-c-a2670a1b/

 

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].

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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