Deliveroo Netherlands B.V. v FNV – Supreme Court, 24 March 2023

Deliveroo operated a digital platform through which customers could order meals from restaurants and have them delivered by riders.

Deliveroo initially employed riders under employment contracts. From 2018 onwards, it changed its model and concluded contracts with riders that were presented as independent contractor agreements.

The Dutch trade union FNV challenged this classification. FNV argued that, despite the contractual description of the riders as independent contractors, the actual rights and obligations arising from the relationship meant that they worked under employment contracts within the meaning of Article 7:610 of the Dutch Civil Code.

The Amsterdam District Court agreed with FNV on 15 January 2019. The Amsterdam Court of Appeal upheld that conclusion on 16 February 2021. Deliveroo subsequently appealed in cassation to the Dutch Supreme Court.

The main characteristics discussed in the proceedings included the riders' freedom to decide when to work, their possibility of accepting or rejecting deliveries, their right to arrange substitution, the method of payment, Deliveroo's organisation of the delivery activities and the limited entrepreneurial investment and commercial risk associated with the work.

The central question before the Supreme Court was whether the agreements between Deliveroo and its riders legally qualified as employment contracts, despite the agreements being presented as contracts for independent services.

Deliveroo particularly relied on the riders' freedom to decide whether and when to work and on their ability to arrange for another person to perform a delivery.

The Supreme Court confirmed that whether an agreement qualifies as an employment contract depends on all circumstances of the case considered in relation to one another.

The Court identified several circumstances that may be relevant:

1. The nature and duration of the work.

2. The way in which the work and working hours are determined.

3. The extent to which the work and the worker are embedded in the organisation and business of the party for whom the work is performed.

4. Whether the worker is required to perform the work personally.

5. The way in which the contractual arrangement between the parties was established.

6. The way in which remuneration is determined and paid.

7. The amount of the remuneration.

8. Whether the worker bears commercial risk in performing the work.

9. Whether the worker behaves, or is able to behave, as an entrepreneur in economic activity. Relevant indicators may include acquiring a reputation, obtaining clients, tax treatment, the number of clients for whom the person works and the duration of their commitments to particular clients.

No single circumstance is automatically decisive. The circumstances must be assessed together.

The Supreme Court considered whether the Amsterdam Court of Appeal had correctly applied the legal framework to the relationship between Deliveroo and its riders.

Deliveroo argued in particular that two characteristics were inconsistent with employment:

• riders were free to decide whether and when they wished to work; and

• riders were able to arrange for another person to perform deliveries.

The Supreme Court accepted that these circumstances could point away from an employment relationship.

However, those factors were not decisive. The Court of Appeal had assessed them together with the other characteristics of the relationship and was entitled to conclude that, on balance, the riders worked under employment contracts.

The practical significance of the substitution possibility was limited. The possibility of substitution therefore did not prevent the relationship from qualifying as employment.

The Supreme Court found that the Court of Appeal had considered the relevant circumstances and that its conclusion was legally permissible and sufficiently reasoned.

The Supreme Court rejected Deliveroo's cassation appeal and left the judgment of the Amsterdam Court of Appeal in place.

The conclusion that the Deliveroo riders worked on the basis of employment contracts therefore remained effective.

The Deliveroo judgment is a leading Dutch authority on the distinction between employment and self-employment.

Its significance extends beyond food-delivery platforms. The framework can be applied when assessing other working relationships in which a person is formally engaged as an independent contractor but the factual and contractual circumstances may indicate an employment relationship.

The decision establishes that classification requires a holistic assessment. Contractual terminology such as "independent contractor" or "self-employed" does not by itself determine legal status.

The judgment also demonstrates that flexibility does not automatically indicate self-employment. Freedom regarding working hours or substitution must be assessed in its practical context.

For worker-classification analysis, particular attention should therefore be paid to the organisation of the work, integration into the business, remuneration, commercial risk and genuine entrepreneurial activity.