A new judgment was added to the increasingly lengthy series of rulings on the gig economy and the question of whether platforms can also be employers.

The case was filed last year by FNV (Federatie Nederlands Vakbeweging), a one of the most active trade unions federation in the Netherlands . It follows an earlier win in the lower courts in its case against Deliveroo, where the court similarly ruled that the delivery riders were employees. 

Personal performance

The court ruled that, “from the fact that drivers have to agree to the conditions set by Uber in order to be allowed on its platform, there is no doubt that drivers work for Uber”.

There is also a personal obligation to perform the work: Uber explicitly checks by means of a selfie to be taken by the drivers whether the driver personally performs the work.

Wages

The court considered that according to the agreement with the drivers, Uber receives the request for a taxi ride and subsequently determines by means of the algorithm to which driver the ride will be offered, the route and the expected ride price. After the ride, Uber receives the fare and pays the driver minus the service costs via Uber Payments BV. The fare is the remuneration (wage) for the transport of passengers (the work of the drivers).

Employer-employee 'relationship of authority'

The question of whether there is a relationship of authority is still the most significant for distinguishing between an employment contract and another employment relationship, and thus decisive for the question of whether there is an ’employee’ or (for example) a self-employed person without staff. In this judgment, the Court broadens the concept of ‘authority’, stating that in our technology-driven age, the use of algorithms to mediate between drivers and Uber constituted a ‘modern relationship of authority’ as an employer.

Uber’s algorithm determines how rides are allocated, including the price, with drivers having no influence. Drivers can only register with Uber through the app and the conditions under which they can use the app are non-negotiable. In addition, certain conditions can only be changed unilaterally by Uber.

Based on the above elements, the court ruled that the algorithm has a financially stimulating, disciplining and instructive effect on the drivers. As soon as they make use of the Uber app and are logged into it, they are subject to the working of the algorithm designed by Uber, and therefore fall under Uber’s ‘modern employer authority’, which terminology has not been used by a Dutch court before

Ultimately, according to the Amsterdam District Court, in its actual execution, the work relationship has all the characteristics of an employment contract.

The court, however, also recognized the complexity that would result from this ruling. It noted that drivers can use multiple apps at the same time and that drivers can reject trips. It, however, left it to separate proceedings how the Taxi collective agreement should be interpreted and how working time should be defined.

Uber has appealed the decision.

According to Confederation of Netherlands Industry and Employers (VNO-NCW), this ruling underlines the necessity of reforms in Labor Law in the Netherlands that would make it more future proof and give more legal certainty to employees as well as (platform) companies.