By Gabriël van Rosmalen, PhD Candidate, Utrecht University
On March 24th 2023, the Dutch Supreme Court delivered its long-awaited ruling after a lengthy legal battle concerning the employment status of Deliveroo rides. The platform lost, once again. The Dutch Supreme Court ruled that the meal delivery workers are not self-employed, but employees. In the meantime, Deliveroo exited the Dutch market. In the lead-up to the judgement, the media buzzed with questions regarding potential ramifications on other digital platforms such as Uber or Temper — a Dutch platform for shift-based work, and the fate of their “self-employed” workers. Could the Deliveroo case enlist a new order in the platform economy?
Now that the judgement is finally here, it can be said that there is some anticlimax. While the Court touches upon several aspects such as “the nature and duration of the work, “the embedding of the person in the organisation,” or the extent to which the worker “runs a commercial risk”, the Court’s ruling is so close to the specific case of Deliveroo, leaving little room for generalisation. The Court even specifies that “all circumstances of the case must be considered”.
The expected “earthquake” therefore did not materialise, as pointed out by labour law Professor and platform specialist Jaap van Slooten in NRC. The reason for this is simple. The Supreme Court mentions that the European Union and the Dutch government are already working on a legal framework. The judgement explicitly leaves it up to the politicians to solve this problem in a more principled manner: “the Supreme Court therefore sees no reason at this time for legal development with regard to these subjects”. Given that many of these platforms operate on a European level, it is crucial for the European Union to take up the challenge presented by the Dutch Supreme Court.
The platform economy is a global problem
Currently, there are 28 million people in the EU working through digital platforms, and this number is growing at an incredible pace: in two years, it is estimated to reach 43 million. The European Commission suspects that there are now over five million platform workers who are wrongly not employed by the platform.
This has all sorts of consequences for workers: no pension, no entitlement to vacation days, no payment during sickness, among other things. Each Member State has chosen its own approach to this problem. Platform workers, for example, could try to challenge their status at the national level. The Dutch Deliveroo case and many other examples in the EU Member States show that this can be successful. In Spain, recently implemented “Riders’ law” calls for permanent employment contracts. Denmark and Sweden are working towards more standard collective agreements between social partners. However, the lack of a cohesive approach across Member States creates uncertainty and fails to provide adequate protection for workers. It is high time for a European response.
Moreover, a number of these platforms operate globally, especially platforms for online services such as graphic design or programming; global coordination is needed to tackle challenges they pose.
The need for a coherent European response
Meanwhile, the first steps have been taken. At the end of 2021, the European Commission published a proposal for a Directive that was amended and adopted by the European Parliament after a year of debate. Against the protests of the platforms, this could mean that millions of “self-employed” workers must be employed. The European Council is currently negotiating the law, which is the final hurdle. However, recent reports indicate that there is a lot of disagreement between the various Member States.
The EU needs to respond to the challenges posed by the platform economy to improve social rights in Europe. Inequalities still persist between European countries, the North and South, and the East and West. It is imperative that individuals in different countries have the same employment status when they perform the same job. Additionally, it is crucial for the EU to demonstrate that it can enforce social progress.
For a long time, the EU has prioritised market thinking and a focus on competition over investing in welfare policies or promoting social rights. Last year, the book Social Europe, the Road not Taken was published, in which historian Andry describes how the European integration process focused on liberalising the internal market. This has rightly led to a lot of criticism in recent years. The EU should ensure that the internal market is accompanied by a common minimum set of rights for those working within it. As History Professor Mathieu Segers said in the Financieele Dagblad at the end of last year: “There is a need for a social component in the European project.”
This is increasingly taking shape. For example, think of the Coronavirus Recovery Fund or the legislation passed last year on increasing Europe’s minimum wage. The case against Deliveroo shows that the challenge for the European Union is to act against the social disruption caused by the platforms. If it fails to do so, the weakening of social rights will continue to spread, and the concept of “Social Europe” will suffer a blow.
* The blog is published a part of the Reshaping Work efforts to stimalute timely debate. The opinions and views expressed in this publication are those of the authors. They do not purport to reflect the opinions or views of Reshaping Work.