Netherlands: Advocate General considers whether Meal Delivery Workers are Employed under an Employment Contract

Author: Lydia Milders

On 17 June 2022, Advocate General (‘AG’) De Bock advised the Supreme Court by means of her opinion on the interpretation and qualification of the agreements between Deliveroo and its meal delivery workers. The question at the heart of this case is whether Deliveroo’s meal delivery workers are employed under an employment contract instead of a contract for services. At first instance and on appeal, it was ruled that Deliveroo’s meal delivery workers are employed under an employment contract. The AG also comes to this conclusion in her opinion to the Supreme Court and considers the interpretation of the criterion ‘employed by’ and the meaning of the free replacement clause to be particularly relevant.

Admissibility 

The AG is of the opinion that FNV was rightly declared admissible by the court of appeal in the collective action it brought: the individual workers are employed on the basis of (two variants of) standard contracts and the meal delivery workers perform the same actual work.

‘Employed by’

With respect to the qualification of the legal relationship in this matter, the AG considers the interpretation of the criterion ’employed by’ (also referred to as the criterion of authority relationship) particularly relevant. Important to this criterion is whether the work is organisationally embedded in the company. If the work is an essential part of the business, there will be a relationship of authority; if the worker can be considered a self-employed person, there is no organisational embedding of the work in the company and therefore no relationship of authority. When assessing whether the work is organisationally embedded in the company of the employer, particular attention should be paid to the actual performance of the work.

Free replacement

The AG finds – as did the court of appeal – that the free replacement clause (Deliveroo’s contract provision that the meal delivery worker is free to be replaced) does not preclude qualification as an employment contract. The same applies to the contractual freedom of the meal delivery worker to work when he or she wants to (by means of logging in).

Advice

According to the AG, Deliveroo’s meal delivery workers are embedded in the organisation and cannot be seen as self-employed persons. The fact that they can be freely replaced and can determine themselves when they work, does not alter this. Therefore, the legal relationship between Deliveroo and its meal delivery workers should be qualified as an employment contract, instead of a contract for services. The meal delivery workers are entitled to all rights they have under Dutch employment law. The AG’s advice is therefore to uphold the judgment of the Amsterdam Court of Appeal. The date on which judgment will be given in this matter has been set (provisionally) for 23 December 2022.

Read AG De Bock’s full conclusion in Dutch here – PHR 17 June 2022, ECLI:NL: PHR:2022:578.