In recent years, digital platforms which provide a food delivery service from restaurants to our homes have proliferated (such as “Deliveroo”, “Glovo”, “Just Eat”, “Take Eat Easy”, “Uber Eats, etc.). The business model is a platform connecting restaurants to customers’ homes. An app coordinates delivery from restaurant to customer. Delivery persons riding bicycles or motorbikes (“riders”) make these food deliveries and are hired as self-employed workers.
For some months now, the Labour Inspectorate has been carrying out reviews of this business model in different parts of Spain. It concludes that the riders are employees. Therefore, the digital platform classification of riders as self- employed workers is fake and breaches the Labour and Social Security laws.
The judicial rulings handed down on this matter are as follows:
The first was the ruling by Court No. 6 in Valencia dated June 1, 2018, which stated that a rider for the Deliveroo platform is not a self-employed worker but must be considered as a salaried employee working for a company, since the rider’s relationship with the platform is based on the elements of subordination and dependency inherent in an employment relationship of a salaried employee.
The judgment rules that the rider is a fake self-employed person, on the grounds that the Deliveroo company organizes and controls the work of a rider (work area, delivery times, schedule, tracking through geolocation …), sets the price of the service with the customer, agrees the conditions with the partnered restaurants, and, ultimately, as the owner of the digital platform, acts as an employer in relation to riders, who are part of the company organization despite the fact that riders use their own vehicle (bicycles, motorbikes etc) and mobile phone to service the said delivery activity.
A few days later, Court No. 11 of Barcelona issued a second ruling along the same lines, stating that a rider for the platform Take Eat Easy is a fake self-employed worker, and should be considered an employee.
The consequence of these rulings is that the business decision to terminate the employment relationship with the delivery worker (the rider) amounts to an unfair dismissal, with the consequent obligation to pay the worker the compensation provided for by labour regulations (33 days of salary per year worked). Likewise, categorizing the riders as salaried employees obliges the company to pay the contributions to the General Social Security Scheme and the income tax deductions. that would have corresponded to practice in their payroll, all with a prescription period of four years.
However, when it seemed that the Labour Inspectorate and the Courts were on the same page and using the same criteria, Court No. 39 in Madrid issued a ruling on September 3, 2018 which was different from Court 6 (Valencia) and 11 (Barcelona). It concluded that a Glovo rider acts as a self-employed worker and is not an employee. Although the facts of the Glovo platform are substantially identical to the two previous ones relating to Deliveroo and Take Eat Easy, Court 39 ruled that the Glovo rider is a self-employed worker.
Said judgment considers it to be a fact that that a Glovoo rider “had no obligatory delivery times or schedule (…), decided the time slot in which he wanted to work, chose the orders that interested him and rejected those he did not want, freely decided the route to follow to reach each destination , had no obligation to start or end his day at a certain time, the company did not impose the class or number of orders he had to make or the route to carry them out. ”
This judgment also ruled that “the worker decided how, where and when to provide services, had complete control of their activity and could even desist from a service previously accepted halfway through without incurring any penalty ” It adds that “the GPS geolocation was not an instrument of control by the company, but a way of counting the mileage for subsequent payment in the following invoice (…) and does not appear to be used to control the route chosen by the actor (rider) in every message.”
And in relation to sick leave and breaks, the ruling from Court 39 establishes that “the worker did not have to justify his leave, only to communicate it to the company” and “neither did the defendant company decide on the worker’s rest days, which were chosen by him.”
For the above reasons, the Glovo platform has been acquitted, so that it does not have to pay compensation for dismissal of the rider. Neither does it need to settle the contributions to the General Social Security Scheme nor income tax deductions.
In view of the different interpretations by the different courts, we understand that the controversy will have to be resolved in the future by the Supreme Court when the judicial proceedings currently under way in the lower courts reach the Supreme for judgement. Nor should we rule out that, in the face of the growing popularity of these platforms, the legislator will approve in the future, specific rules and regulations that will clarify the legal framework in relation to the riders.
