The question of whether and when an employment contract exists is highly topical. It is a subject of considerable debate both in politics and in the courts.
Last week, we published a blog about the bill on clarifying the assessment of employment relationships and the legal presumption of employment. Through this bill, the Dutch government aims to introduce a clearer test for determining whether an employment contract exists. The proposed legislation closely follows the framework that has already been developed in case law. As a result, case law remains both highly relevant and of considerable interest.
The same applies to the recent judgment of the Amsterdam Court of Appeal on the question of whether Uber drivers are genuinely self-employed entrepreneurs, or whether they are in fact employees working under an employment contract.
Background
Uber is a ride-hailing platform. After logging into the Uber app, a driver may be offered taxi journeys. The offer includes the pick-up location, the estimated journey time, and the passenger’s average rating. Uber also provides the passenger with an estimated fare for the trip. The driver then has the option to accept, ignore or decline the journey.
The passenger pays the fare to Uber, which in turn pays drivers weekly the total amount earned from the journeys they have completed. A 25% service fee is deducted from the fare before payment is made to the driver.
FNV initiated legal proceedings before the court. In those proceedings, FNV asked the court to declare that the Collective Labour Agreement for the Taxi Transport Sector applied to the drivers during certain periods and had therefore been applicable to them during those periods.
Generally binding collective labour agreement
To properly understand FNV’s claim, it is important to know that the Collective Labour Agreement for the Taxi Transport Sector was declared generally binding during certain periods. Where a collective labour agreement has been declared generally binding, it applies to all employers and employees who fall within its scope. This is the case even if those employers and employees are not members of an employers’ organisation or trade union.
The Collective Labour Agreement for the Taxi Transport Sector was declared generally binding during certain periods. As regards its scope, the collective labour agreement applies to employers and employees engaged in the provision of taxi services. Consequently, if Uber drivers were working under employment contracts, Uber could fall within the scope of the Collective Labour Agreement for the Taxi Transport Sector and be required to comply with its terms during the periods in which the agreement was generally binding.
The key question in the proceedings referred to above was therefore whether the relationship between Uber and its drivers should be regarded as one between an employer (Uber) and employees (the drivers). In other words, were the Uber drivers working under employment contracts?
What did the court decide?
The District Court found in favour of FNV and held that the Uber drivers were working under employment contracts. Uber disagreed with that judgment and therefore appealed to the Amsterdam Court of Appeal.
What did the Court of Appeal decide?
We do not yet know. The Amsterdam Court of Appeal has not yet issued a final ruling on the question of whether the drivers are engaged under employment contracts.
In its judgment of 3 October 2023, the Amsterdam Court of Appeal held that the question of whether an employment contract exists must be assessed on the basis of the criteria identified by the Dutch Supreme Court in the Deliveroo judgment.
Deliveroo-arrest
In the Deliveroo judgment of 24 March 2023, which concerned the question of whether Deliveroo couriers were working under employment contracts, the Dutch Supreme Court identified a number of factors that it considered relevant when assessing whether an employment contract exists.
One of the factors identified by the Dutch Supreme Court was the entrepreneurial status of the individual performing the work—in this case, the drivers. Under the Deliveroo judgment, the answer to the question of whether an employment contract exists may therefore depend, in part, on whether the individual concerned conducts themselves as an entrepreneur in the marketplace.
Questions referred to the Supreme Court
For the Uber case, taking the factor of entrepreneurship into account could mean that two Uber drivers performing exactly the same work may be classified differently. One driver might be working under an employment contract, while the other might not. This is because one driver may conduct themselves as an entrepreneur in the marketplace, whereas the other does not.
In its judgment of 3 October 2023, the Amsterdam Court of Appeal questioned whether that outcome is desirable and whether it is truly what the Dutch Supreme Court intended. The Court of Appeal therefore announced its intention to refer a number of preliminary questions to the Supreme Court. Among other things, it sought clarification on whether and how the concept of entrepreneurship should be taken into account when assessing whether an employment contract exists.
Whether Uber drivers are working under employment contracts therefore remains uncertain for the time being. To be continued!
Do you have any questions following the above? If so, please feel free to contact the lawyers at Ko & Co Advocaten for a no-obligation consultation.
Hian Li Ko | Ko & Co Advocaten
