12 Oct 2021 Uber taxi driver: employment contract or not?
While various platforms in different sectors are fighting for market share, a labour law war is also raging between trade unions and the various platforms. The Amsterdam District Court recently ruled in favour of FNV that Uber taxi drivers have an employment contract because of the (modern) employer-employee relationship. What were the decisive arguments?
Platform workers often do not work on the basis of an employment contract, but as 'self-employed'. As a result, they enjoy less protection (such as continued payment of salary during illness and protection against dismissal) and are not entitled to employment conditions from a collective bargaining agreement (which would otherwise apply).
Although no employment contract has been agreed, there may in fact be an employment contract. For example, the Amsterdam Court of Appeal ruled on 16 February 2021 that delivery staff of the Deliveroo meal delivery service are working on the basis of an employment contract (ECLI:NL:GHAMS:2021:392). This is also what FNV argued - successfully - before the District Court of Amsterdam on behalf of taxi drivers who worked via the Uber application (ECLI:NL:RBAMS:2021:5029). How did the District Court arrive at this judgment?
The Court first briefly outlined the basis. According to the law, there is an employment contract if three characteristics are met, namely: (i) work, (ii) pay and (iii) authority. Case law has fleshed out these elements.
Recently, the Supreme Court clarified in X v Gemeente Amsterdam that it must first be determined which mutual rights and obligations the parties have agreed upon (ECLI:NL:HR:1746). This question must be answered on the basis of what the parties could reasonably expect from each other. On the basis of the content of the agreement thus established, it can subsequently be determined whether the agreement has the characteristics of an employment contract, or, for example, that of a commission contract. Not one single characteristic is decisive.
The court ruled that the legal relationship between Uber and the drivers meets all the core requirements of an employment contract (work, wages and authority). Especially the question whether there is a question of authority is always a hot topic. That was also the case here. After all, the platform workers can often decide for themselves when they get in the taxi and whether they accept a ride. However, the court ruled that the Uber app has a disciplining and instructive effect, and a financial incentive to work (and work more often). As soon as drivers make use of the app, they are subjected to the working of the algorithm designed by Uber and that can be changed unilaterally by Uber. The court calls this a "modern employer-employee relationship".
The judgment of the Court of Amsterdam means that drivers have an employment contract and Uber is obliged to apply the collective labour agreement.
The judgment underlines the message of the Borstlap Commission of January 2020, that there should be more protection and rights for self-employed workers dangling at the bottom of the labour market. Meanwhile, Uber has announced that it will appeal the ruling.
Would you like to know more about platform labour or other labour law topics? SPEE advocaten & mediation will be happy to advise and assist you.