Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The Dutch Supreme Court has just ruled that Deliveroo meal deliverers are not self-employed, but rather “regular” employees. With this decision the Supreme Court confirms the earlier judgments of the Cantonal Court and the Court of Appeal.
Meanwhile, Deliveroo has left the Netherlands. This ruling is still important, however. The employees can still claim back payment of wages and allowances. In addition, this ruling is important for legal development and for other companies active within the platform economy.
Freedom to work does not preclude existence of employment contract
Deliveroo believed its meal deliverers were self-employed and therefore not working under an employment contract. The Supreme Court, just as the Court of Appeal had done before, ruled that the freedom of the meal deliverers to appear at work and accept assignments or not is an element that indicates self-employment rather than an employment contract. However, this element of freedom does not preclude the existence of an employment contract. As the conditions for the existence of an employment contract were met (performance of work for a certain amount of time, payment of wages and a relationship of authority), the meal deliverers were therefore employees and not self-employed.
Possibility of replacement does not exclude existence of employment contract
According to the Supreme Court, the fact that the meal deliverers were allowed to be replaced based on their agreement with Deliveroo also did not exclude an employment contract. Indeed, such a substitution option will not lead in practice to a revenue model for the "self-employed person" because it does not appear possible for that self-employed person to contract with the platform and then have their work performed by substitute workers at the same time. Therefore, the significance of the substitution clause is minor in practice.
The Supreme Court ruling was eagerly awaited because it was expected that the Supreme Court would create a new legal rule regarding the "embedding" of the work in the organization of the employer. The Supreme Court, however, was not willing to do so.
According to the Supreme Court, the question whether there is reason for further general rules or principles to determine whether an agreement is an employment contract, partly to delimit working as a self-employed individual, has the attention of the legislature. This could include such starting points as the embedding of the work in the organization for which the work is performed or the amount of consideration for the work. With the legislature already working on this issue, the Supreme Court sees no reason for further legal development at this time.