On 17 June 2022, Advocate General (AG) De Bock issued an advisory opinion in a fundamental case between FNV, the largest Dutch trade union, and online meal delivery company Deliveroo. In a ruling contested by Deliveroo, the Amsterdam Court of Appeal had previously decided that FNV had a cause of action and that Deliveroo riders qualify as employees despite having entered into contracts for services - as independent contractors - with the company. According to the AG, the court of appeal's decision was correct, and should be upheld by the Supreme Court. Although the Supreme Court is not bound by the opinions of the AG, it does follow them in most cases, putting FNV in a favourable position. The Supreme Court's decision is expected in late December 2022.

Background of the case

Deliveroo operates a digital platform where an ordering and payment system links independent restaurants to customers. Deliveroo riders deliver the meals to customers by using an app on their phone to receive the orders and locations of restaurants and customers. Initially, after starting its activities in the Netherlands in 2015, Deliveroo riders worked on the basis of a temporary employment agreement. But since 2018, Deliveroo has only entered into agreements for services and has treated riders as self-employed workers.

Trade union FNV filed a collective action against Deliveroo under article 3:305a Dutch Civil Code (DCC), stating that the Deliveroo riders are employees entitled to employee rights such as sickness pay and protection against unreasonable dismissal. FNV invoked article 7:610 DCC, a provision of mandatory law that qualifies a relationship as employment if the criteria "work"', "wages" and "control" - also known as a "relationship of authority" - have been met. Based on Supreme Court case law, this provision requires a holistic approach looking at all relevant facts and circumstances, viewed in relation to each other. FNV argued that as all three criteria for employment are met in the relationship between Deliveroo and the meal riders, the judge should look beyond the "'self-employed worker construction" Deliveroo has set up on paper.

Both a sub-district court and court of appeal ruled that FNV had a cause of action, and that the Deliveroo riders work on the basis of an employment agreement as the "'work", "wages" and "control" are met.

AG's opinion

In following FNV's line of reasoning, the AG argues that the court of appeal's judgment can be upheld, both when it comes to the decision that the Deliveroo riders are employees and that FNV has a cause of action.

In a detailed 125-page opinion (available in Dutch only), the AG outlines the context of this type of platform-based work and the issue of qualifying it. Interestingly, the AG makes a plea for a new standard for assessing "control". In her view, the main question should be whether the work is "organisationally embedded" in the company. When the work carried out forms part of the company's core activities, the work is organisationally embedded in the business and the "control" test is promptly met. Only if workers can be regarded as independent contractors running their own business is the work not organisationally embedded. This must be determined based on how the work is actually performed, in line with case law of the Court of Justice of the European Union.

The AG further argues that the obligation to "personally" carry out activities is not an element of "'work" within the meaning of article 7:610 DCC. The fact that the riders were allowed to get someone to replace them did not stand in the way of qualifying the relationship with Deliveroo as an employment agreement. The same applied to the riders' freedom to work or not to work. Finally, in the AG's view, the social position of workers "at the bottom of the labour market" is important when considering if they have negotiated rights and obligations or whether these have been unilaterally determined by the work provider.

If the Supreme Court follows the AG's opinion, Deliveroo riders will be entitled to employment rights. The Supreme Court's decision is expected in late December 2022.

De Brauw's Stefan Sagel and Irina Timp are litigating this case before the Supreme Court on behalf of trade union FNV.