The case has been dragging on for years, but at the end of March a decision was finally made in the legal conflict between Deliveroo and FNV. The delivery service regarded its deliverers as self-employed persons with an assignment contract. The union felt that this was actually the case employment contracts: the deliverers are therefore not independent entrepreneurs, but employees employed by Deliveroo. After the subdistrict court judge and the Court of Appeal ruled in favor of FNV, the Supreme Court has now done the same. An important result, perhaps with consequences for more organizations and self-employed persons in the Netherlands.
What is the difference between an assignment and an employment contract?
You can perform work for an organization in different ways. Paid employment is the most common: you have an employment contract with your employer and determine, among other things, for what period and under what conditions you work there. But you can also work as a self-employed person on behalf of a company. In that case, you conclude an assignment agreement between you as the contractor and the organization as the client.
Both types of agreements have advantages and disadvantages, and it is entirely up to you and your situation which is best. For example, you can often earn more with an assignment agreement, but you also run more risk. You are seen as an independent entrepreneur, which means that you do not, for example, accrue unemployment benefits and do not receive continued payment if you fall ill.
What was going on with Deliveroo?
If you opt for an assignment agreement yourself and also benefit from the benefits, that is of course fine. But if there is actually paid employment, it can be very disadvantageous to be 'self-employed'. Trade union FNV saw this happen at delivery service Deliveroo. Many aspects of the job looked suspiciously like salaried employment, but on paper all delivery drivers were self-employed. As a result, they missed out on a lot of certainties. Both the subdistrict court and the Court of Appeal already agreed with FNV. At the end of March 2023, the Supreme Court – the highest judicial body in the Netherlands – ruled.
What does the Supreme Court say?
The Supreme Court also finds that there is so-called bogus self-employment. To reach that conclusion, they critically examined several elements of Deliveroo employment: 'labour', 'wage', 'employed' and 'for a certain period of time'. By comparing the legal definitions of this with the situation at Deliveroo, the Supreme Court came to the conclusion that the deliverers were actually employed - even though 'contract agreement' was written at the top of the contract. But keep in mind that the same assessment of a different situation can lead to a different outcome.
A main argument of Deliveroo was the fact that delivery drivers could be replaced by others and that they could choose whether or not to accept an order. This is often not possible with an employment contract, but as an entrepreneur with a contract for services it is possible. The Supreme Court did not agree. Although there was a replacement option, its value for delivery drivers turned out to be disappointing, because Deliveroo often did not allow it in practice. At best, very restrictive conditions applied. Moreover: it is also possible within an employment contract not to accept assignments.
What does this statement mean?
For former Deliveroo deliverers – the delivery service has not been active in the Netherlands since the end of 2022 – the ruling could have major consequences. For example, they may be entitled with retroactive effect to continued payment during illness and the accrual of holiday pay. In addition, the ruling may be important for others with a contract for services. The Supreme Court emphasizes that each situation must be assessed separately, but the Deliveroo case can still play a role in the argumentation in a similar conflict.
What the ruling mainly shows is that you must remain alert to the type of agreement between you and your employer. Particularly if you have a contract for services, but work for one client, there may simply be an employment contract. In such a case you are entitled to more than you get.
More information
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