Italy: Italian Case Law Confirms the Subordinate Nature of the Employment Relationship of Riders

The Italian case law focuses again on the topic of the qualification of the riders’ employment relationship and the consequent implications.

In particular, the Court of Milan, with the recent decree of 28 September 2023 stated that Uber Eats Italy riders are subordinate employees rather than self-employed workers. As a consequence, in cases of mass dismissals, the procedures mandatorily set forth by the law shall be triggered.

In light of the above, the Court of Milan found the conduct of the company Uber Eats as anti-union for having shut down the business of food delivery in Italy and therefore terminating the riders by disconnection from the platform by way of e-mail communication.

In detail, the decision highlighted that to correctly qualify the relationship between riders, the actual performance of their activities and the constraints to which they are subject should be assessed. In the case examined, the ruling outlined that in the organisation of their work, riders were subject to the platform, and therefore, they had to be qualified as employees (excluding the possibility of framing this category of employees as self-employed individuals or under other intermediate categories).

The qualifications of subordinate employees have significant implications, according to the judgement. Indeed, to proceed with the terminations, the company is required to implement:

• the consultation and information procedure with the relevant trade union organisations set forth by Law No. 234/2021 (which applies in the event of closure and permanent termination of production activities entailing at least 50 dismissals for employers who in the previous year employed an average of at least 250 employees); and
• the procedure for collective dismissal regulated under Law No. 223/1991.

In light of these considerations, the Court of First Instance issued a very impactful decision. Firstly, it declared the anti-union nature of the conduct of the company, stating that Uber Eats failed to comply with the above procedures. Then, it ordered the company to revoke all withdrawals from the riders’ employment contracts. Moreover, the Court ordered Uber Eats to trigger with the relevant trade union organisations the consultation and information procedures set under Law No. 234/2021 and Law No. 223/1991.

This judgement strengthens the trend of Italian case law to acknowledge riders as subordinate employees. As remarked, the implications are crucial for the correct fulfilment of the discipline set forth by Italian labour law, with particular regard to employees’ termination.

Key Action Points for Human Resources and In-House Counsel

Practical Points

• Under a general perspective, employers shall accurately evaluate the consequence of the wrong qualification of the employees given the significant implications arising from the acknowledgement of employees as subordinate, with particular regard to the discipline of the employment relationship’s termination.
• According to the Italian case law, the employment relationship shall be qualified as subordinate whenever the employees are not free to organise on an autonomous basis the performance of their activities as they are subject to the company’s directives.
• In determining the nature of the relationship established, it is important to assess the concrete characteristics of the relationship itself, such as the presence of the power to direct, manage, and control the employee, rather than the formal classification of the employment contract agreed by the parties.