Whether an Uber driver has an employment contract with Uber may partly depend on whether that driver behaves as an entrepreneur in the course of business. This may also include circumstances that lie outside the relationship between the driver and Uber. The Supreme Court of the Netherlands ruled this today in response to preliminary questions.
The case
Drivers who provide taxi transport via the Uber app under an agreement with Uber do so as independent entrepreneurs, not as employees of Uber, according to Uber’s terms and conditions. Trade union FNV finds that employment contracts exist between Uber and the drivers. FNV claimed that the court should declare that the CAO Taxi Transport applies to the drivers and that Uber should be ordered to comply with this CAO in full. The court granted these demands. On appeal, the court referred so-called preliminary questions to the Supreme Court.
The preliminary questions
The preliminary questions deal with how the Supreme Court’s Deliveroo judgment should be understood. The Deliveroo judgment dealt with the question whether Deliveroo delivery drivers are working on the basis of an employment contract. Whether an employment contract exists, according to the Deliveroo judgment, depends on all the circumstances of the case. In the Deliveroo judgment, the Supreme Court mentioned a number of specific circumstances that may be relevant. Among other things, what may be important is whether the person performing the work behaves or can behave as an entrepreneur in the course of trade (‘entrepreneurship’).
The first preliminary question is whether the ‘entrepreneurship’ of the worker can be decisive in determining whether or not there is an employment contract.
The second preliminary question is whether an affirmative answer to the first question means that the employment relationship of a worker without ‘entrepreneurship’ is an employment contract, while the employment relationship of another worker, with ‘entrepreneurship’, is not an employment contract, although they do the same work for the same client. The third preliminary question is whether ‘entrepreneurship’ as mentioned in the Deliveroo judgment is limited to aspects that occur in the employment relationship between the worker and the client, or whether aspects outside that specific employment relationship are also relevant.
Supreme Court ruling
The Supreme Court answered the questions as follows. In the Deliveroo judgment, the Supreme Court did not rank the circumstances mentioned in that judgment as important in assessing whether there is an employment contract. Thus, the circumstance of ‘entrepreneurship’ is no less important than the other circumstances. The Supreme Court sees no reason for such an order of precedence now either. It cannot be ruled out that for the answer to the question of whether a contract is an employment contract, the decisive factor is whether the employee acts or can act as an entrepreneur in the course of business, even if other circumstances point to an employment contract. It may therefore occur that the employment relationship in respect of the same work, performed for the same client, is not an employment contract for a worker with ‘entrepreneurship’ and is for a worker without ‘entrepreneurship’. ‘Entrepreneurship’ within the meaning of the Deliveroo judgment relates to the general (entrepreneurial) situation of the worker and can therefore also refer to circumstances outside the specific relationship between the worker and his client.
Source: Hoge Raad: bij beoordeling of sprake is van arbeidsovereenkomst geldt geen rangorde tussen de mee te wegen omstandigheden, waaronder eventueel ‘ondernemerschap’ van de werkende – Hoge Raad (translated from )
Photo: Austin Distel on Unsplash
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