Food delivery drivers can demand an employment contract: be careful with freelance agreements

The Amsterdam Court of Appeal ruled in the case between Deliveroo and FNV that food delivery drivers actually work on the basis of an employment contract. It is not the parties' written intention that counts, but the actual situation: is there work, wages, and authority for a certain period of time? For entrepreneurs working with self-employed workers, this serves as a warning: even with a freelance agreement, a judge can assume a (fictitious) employment relationship.

Many online work platforms present themselves as mere intermediaries between supply and demand. We have previously written that this regularly gives rise to debate. After all, regarding the question of whether a (fictitious) employment relationship exists, it is not the intention of the parties that counts, but reality. The criterion is: has there been work, wages, and authority for a certain period of time? The Amsterdam Court of Appeal (ECLI:NL:GHAMS:2021:392) answered these questions in the Deliveroo v. FNV case.

Is work involved?

That was not up for discussion. Deliveroo uses the “Frank” algorithm, which assigns suitable couriers based on factors including vehicle type, location, estimated delivery time, and when the meal is ready. The assigned courier accepts the assignment, picks up the meal, and delivers it — thus, work is performed.

Is this considered wages?

For an accepted assignment, the delivery driver receives compensation, the amount of which Deliveroo unilaterally determines. Initially, this amounted to 5 or 6 euros per delivery (short or long trip), later adjusted to 3.50 and 4.80 euros. Delivery drivers take approximately 30 minutes for a delivery and often wait a long time at restaurants, meaning that, according to the court, they earn about 40% of the regular minimum wage. However, because the compensation is higher than the costs incurred, the court ruled that it constitutes wages.

Are the delivery drivers under the authority of Deliveroo?

This was the most difficult question. Arguing against authority: delivery drivers may decide for themselves whether to accept an assignment (otherwise Frank will appoint someone else), they may have themselves replaced, and they may also work for a competitor. Nevertheless, the court saw authority:

• Meals must be delivered quickly, so in practice, delivery drivers have no choice but to choose the fastest route — little real freedom.
• The fact that Deliveroo gives few instructions is because the work is so simple that directions are hardly necessary; this does not mean that there is no employment contract. By way of comparison: a salaried truck driver also chooses his own route.
• Deliveroo always knows where the delivery drivers are and can exercise control.
• The contract — which determines, among other things, how the work is performed — has already been unilaterally amended by Deliveroo on multiple occasions.

The court concluded that there is indeed a relationship of authority.

For a certain period of time

Finally, the court ruled that it had not been shown that the delivery drivers perform the work to a negligible extent, so that the requirement of “work for a certain period of time” was also met. Consequently, all elements of an employment contract were present.

What does this mean for those who work with freelancers?

The delivery drivers can claim an employment contract, with the right to continued payment of wages during illness, collective labor agreement wages, and payment during waiting periods. The financial consequences are significant. The lesson: if you work extensively with self-employed professionals, pay close attention. Even with a freelance agreement, a judge can assume a fictitious employment relationship if reality points to work, wages, and authority.

Frequently Asked Questions

Does the contract determine whether someone is self-employed or an employee?

No. It is not the written agreement, but the actual situation that is decisive. If work, wages, and authority indicate an employment relationship, a judge may assume an employment contract exists, despite a freelance contract.

When does authority exist?

This includes situations where the client can exercise control, frames the work, or unilaterally determines the terms. Limited autonomy of the worker does not exclude authority.

Is a freelance agreement pointless then?

No, but it must reflect reality. A well-drafted agreement and appropriate practice reduce the risk of fictitious employment.

Do you work with freelancers? Have it assessed

The risk of a fictitious employment relationship is real and costly. The legal experts at MKB Juristen assess your collaboration and draft a freelance agreement tailored to your practice. View our expertise in employment law or schedule a free intake consultation .