The Dutch Supreme Court ruled that delivery drivers for work services platform Deliveroo are employees and not self-employed.

The Supreme Court decision upholds a Court of Appeals ruling in 2021 which ruled that agreements between Deliveroo and its couriers qualify as employment contracts.

Deliveroo couriers had worked under contracts described as a contract for services. The FNV trade union maintained that this description was incorrect and that these were employment contracts. FNV, which brought the case in 2018, demanded a declaration that the deliverers work at Deliveroo on the basis of an employment contract.

A subdistrict court and the Court of Appeal had ruled that they were indeed employment contracts. Deliveroo then lodged an appeal in cassation with the Supreme Court against the court's decision. Deliveroo terminated its activities in the Netherlands during the cassation procedure. 

Deliveroo had asked the Supreme Court to overturn the court's ruling. In its cassation it argued, among other things, that the deliverers could be replaced and that they were free to work for a competing company. According to Deliveroo, this does not fit with an employment contract. Furthermore, Deliveroo states that its riders are free to choose their own hours and refuse deliveries. 

The Supreme Court upheld the Court of Appeal's judgment that Deliveroo's couriers were employed on the basis of an employment contract.

According to the Supreme Court, whether there is an employment contract depends on all the circumstances of the case. The Court of Appeal assessed those circumstances and subsequently ruled that the Deliveroo deliverers had an employment contract. According to the Supreme Court, that judgment of the Court of Appeal is not legally incorrect.

Regarding the freedom of the delivery drivers to work when they want and to be replaced, the Supreme Court said it considered that the court has recognised that these circumstances point to the fact that no employment contracts existed between Deliveroo and the delivery drivers. However, the Court of Appeal was allowed to rule that these were employment contracts after all on the basis of the other circumstances of the case. 

The Court of Appeal in 2021 made a statement on Deliveroo’s comment on couriers’ freedom to work for a competing company. The Court stated that ‘certainly now that more than two-thirds of the deliverers at Deliveroo work as a hobby and thus earn less than 40% of the regular minimum wage,’ and said it is ‘not a circumstance that is of great importance for the presence or absence of an employment contract.’

Another factor was the fact that the practical importance of the replacement option for the deliverers was limited.

In its conclusion in 2021, the Court of Appeal stated, “All the circumstances taken together, the court finds that only the freedom given to the deliverers with regard to the performance of the work is a circumstance that 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 period of time (with legal presumption), as well as the aforementioned other circumstances indicate the presence of an employment contract rather than the absence thereof,” the statement continued. “Moreover, the freedom given to the deliverers with regard to the performance of the work is not incompatible with the classification of the agreement as an employment contract.”

According to the NL Times, while Deliveroo has left the Dutch market, the ruling could still have significant consequences for the company if FNV demands that it back pays delivery workers’ benefits and wages. The ruling can also have major implications for businesses that operate in a similar manner in the Netherlands, regardless of their sector.

FNV deputy president Zakaria Boufangacha told Dutchnews.nl, “The employees are indeed managed and have virtually no say over pay rates and working conditions. As a result, they have to pay and arrange their own insurance, days off and pensions. And they don’t do it, because the pay is far too low.”

Deliveroo has not commented on the ruling but has previously stated that the Netherlands contributed to just 1% of its gross transaction value (GTV) in the first half of 2022.