Uber taken to task by court: drivers are employees and subject to cab transport collective bargaining agreement

According to Uber, its platform only cooperates with self-employed drivers (and therefore not employees) where only customers and drivers (supply and demand) are brought together. The FNV disagreed and went to court. Uber's involvement would be much bigger than just providing a platform, because Uber would control the transport services in detail. The Amsterdam court ruled in favor of FNV last Monday: the legal relationship between Uber and the drivers meets all the characteristics of an employment contract. For Uber, this is a major financial blow. Not only must the CAO Taxi Transport be applied immediately and Uber must pay damages of €50,000, there is also a risk that drivers will claim back pay (based on the CAO) for periods already worked.

Platform labor

(Digital) Platform labor has been experiencing explosive growth for years. In this form of labor, according to the parties, there is no employment contract, but the person performing the labor works as a self-employed person. The platform connects clients with the self-employed person. The company that provides the platform pays the self-employed person after completing the assignment - minus the service fee. In this way, the platform brings supply and demand together. Well-known examples of such platforms are Uber (cab service) and Deliveroo (meal delivery).

For the self-employed, platform work brings advantages. For example, he is free to choose which assignments he does and does not want to take (when and how). The company providing the platform, on the other hand, does not have to deal with all kinds of personnel issues and costs. There is also no obligation to comply with the (for the employee protective provisions in the) law or a collective bargaining agreement. Think of minimum wages, sick pay, vacation days, dismissal protection, etc.

If parties choose to commit to each other in this way, why shouldn't they be able to?

Still an employment contract?

In November 2020, the Supreme Court ruled that the intention of the parties (whether or not they have an employment contract) is not so relevant for assessing the employment relationship. What matters is whether the rights and obligations agreed upon between the parties comply with the legal description of an employment contract. Along the same lines, in February of this year, the Amsterdam Court of Appeal confirmed that employment contracts exist between Deliveroo and its meal delivery drivers, despite what the parties themselves had in mind. That case, incidentally, had also been brought by the FNV.

Thus, given these rulings, the outcome of the case against Uber is not very surprising. According to the Amsterdam court, the rights and obligations agreed between Uber and the drivers meet the legal description of the employment contract. First of all, there is pay. After all, the drivers receive a certain fee per ride. In addition, the labor (the rides) is performed personally by the drivers. The drivers have their own profile (with selfie) on the platform that allows Uber to check which rides have been driven by a particular driver.

A third characteristic of an employment contract is the existence of a relationship of authority between Uber and the drivers. Uber argued that there is none, in that the driver is free to accept and cancel rides. However, the court cut this defense short. Because the employee in general has become more independent, one must look at whether there is so-called "modern employer authority. The interpretation of authority here is somewhat more indirect (often digital) and controlling in nature. Both canceling and refusing an offered ride have disciplinary consequences at Uber. In addition, Uber unilaterally determines and changes (working) conditions, routes and decides unilaterally what to do with customer complaints (discounts, etc.). The fact that drivers are allowed to set their own hours and use similar apps at the same time as working for Uber does not alter the fact that there is still a relationship of authority here. Thus, the criteria of an employment contract - pay, personal labor and a relationship of authority - have been met, despite the fact that the parties had not intended this.

Resume

So this ruling makes another stab at "case law": what matters is whether the rights and obligations agreed between the parties comply with the legal description of the employment contract. The fact that the parties had made other arrangements in the contract does not alter this. The actual execution of the agreement was simply not in line with its content.

At least within the FNV, it will be seen as a second victory in their fight for worker protection. Possibly "good example follows" and more lawsuits can be expected. I am curious. We will of course keep you informed.