Last Tuesday, the Amsterdam Court of Appeal ruled that Deliveroo's delivery drivers work on the basis of an employment contract.
The court reiterates the Supreme Court's two-phase doctrine of 6 November 2020 as the applicable legal framework to qualify the agreement. On the basis of the rights and obligations agreed between the parties (interpretation phase), it must be assessed whether the elements “work”, “wages”, “employed” and “for a certain period of time” have been met (qualification phase).
Subsequently, the Amsterdam court of appeal assesses each element individually. The freedom with which delivery drivers can perform the work, the way in which the wages continue to be paid by Deliveroo, the way in which Deliveroo has work carried out by delivery workers and the fact that the work of the delivery workers is not of negligible magnitude, in addition to a number of other circumstances, makes the court come to the conclusion that the existence of an employment contract is more likely than not.
The question is whether the court applies the two-phase doctrine correctly. Firstly, the court appears to determine “the agreed rights and obligations” per qualifying element, while in short it can be argued that the interpretation phase must first be completed in full before qualification takes place, c.q. it is not correct to fix the holistic interpretation test to any qualifying element. Secondly, in the context of the qualification, the court seems to take as a starting point the existence of an employment contract instead of qualifying the agreement and then concluding. This also raises questions about the “more / less” employment contract approach of the court of appeal in general. Third, the court does not appear to use a cumulative qualification test. If the established agreed rights and obligations with regard to any element “indicate the absence rather than the presence of an employment contract”, then a constitutive element is not met. In other words: if the element “work” is not met, then there is no employment contract. Fourth, a question can be asked about the correctness of the test “whether the rights and obligations agreed between the parties are in line with what is customary on the basis of an employment contract.” And so it is rather easy to formulate more questions. Appeal beckons.
The importance of the qualification of legal relationships is daily news. Also in the countries around us. Its consequences are far-reaching. Also in the light of, among other things, the report of the European Parliament of 9 February 2021 with regard to platform workers, the need for fundamental re-thinking about the structure and deployment of personnel populations is urgently given. Companies must act now.
