Jan Dop

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Jan is a specialist in employment law and corporate law

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Uber drivers are employees, not self-employed workers

Publication date 14 September 2021

According to the Amsterdam District Court, Uber drivers are employees. Therefore, they are covered by the collective agreement of the taxi industry with all associated rights and obligations. How did the District Court reach this judgement? And what does it mean for other forms of platform work?

uber

When is a contractor an employee? Where is the line between self-employment and false self-employment? What makes a contract an employment contract? These questions remain difficult to answer. Even after the ruling of the Supreme Court of the Netherlands of 6 November 2020. We previously wrote about the ambiguities concerning the management agreement, now we have a look at the other side of the labour market: platform workers. In this case, Uber drivers.

Is Uber an employer or intermediary?

The Federation of Dutch Trade Unions (FNV) filed a claim with the Amsterdam District Court that Uber drivers should also be covered by the collective labour agreement of the taxi industry. Granting the claim has major consequences for Uber. If Uber falls under the collective labour agreement, it will have to pay higher minimum wages and must also meet other employment conditions.

Uber therefore argues that it only acts as an intermediary and is not an employer. In fact, it is even a contractor for its drivers. After all, Uber, on behalf of its drivers, ensures that the costumers pay and that they receive the money. How does the Court rule?

The Court looks at the principles under which the drivers can use the Uber app. Do these meet the characteristics of an employment contract: work, wages, and authority?

Work

Uber’s contention that it only acts as an intermediary does not apply. The drivers work under a contract they conclude with Uber. In addition, Uber’s core business is transportation and not acting as an intermediary. The work must be performed by drivers in person. Uber monitors this by requiring them to take a selfie. The reason for this check is that the drivers are only allowed to transport people if they have a licence. That this is a statutory requirement does not make a difference to the Court. The Uber driver must perform the work in person.

Wages

The drivers receive money for the rides they drive. This is paid by another company, Uber Pay. Also, it is not called wages, but fare. Both of these things, however, do not change the fact that Uber drivers receive wages for their work.

Authority

The main difference between employees and self-employed workers is the relationship of authority. The Court notes that employees have become increasingly independent. Authority is often exercised indirectly and digitally by the employer.

This “modern relationship of authority” also exists between Uber and its drivers, according to the Court. Drivers cannot negotiate the terms of the Uber app. Uber also regularly changes these conditions unilaterally. In addition, drivers have no influence on the fare. That is determined by Uber. Finally, the drivers are controlled by the algorithm of the Uber app. Uber determines that algorithm. So this is a case of “modern employer authority” by Uber.

Uber is a “modern” employer

The Court concluded that Uber is the employer of the drivers. As taxi transport is the core business of Uber, the company is covered by the collective labour agreement of the taxi industry.

Union

What is striking about this case is that it does not concern a dispute between Uber and its drivers, but between Uber and the FNV union. The FNV was involved in the conclusion of the taxi industry’s collective labour agreement. This has been declared generally binding. Therefore, the FNV has an interest in ensuring that all taxi companies comply with this collective agreement. Even if the drivers do not want to be covered by the collective labour agreement. This also applies to other collective agreements. Clients therefore have to take into account that even if their contractors and self-employed workers agree to work under a commission contract, a trade union can enforce compliance with a collective labour agreement.

As the drivers are not a party to this lawsuit, the Court rejected a number of the FNV’s claims. FNV demands that Uber, within 14 days, gives all drivers who request it, a correct specification of what they are still entitled to on the basis of the collective labour agreement. If Uber is too late, it must pay the FNV a penalty of € 10,000 per driver. The Court finds this requirement too vague. Moreover, only a driver can judge whether a specification is correct.

Works council

An unexpected consequence for Uber may also be that the company is required to allow its drivers to take part in the works council. As the algorithm also includes an assessment of the drivers, this may require the consent of the works council. Of course, this may also apply to other platform companies that use algorithms.

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