Employment status, working time and collective bargaining

Author: Anthony Kerr^{^[1]}

The status of ‘platform workers’ and other non-standard forms of employment in the ‘gig economy’ continued to generate a wide variety of contributions to EELC throughout 2020: see, in particular, the article by Andrzej Świątkowski (EELC 2020/29).

The UK Supreme Court has now unanimously upheld the majority decision of the English Court of Appeal (on which see EELC 2020/43) that the Employment Tribunal had been correct in concluding that Uber drivers were ‘workers’ for minimum wage and working time purposes: see Uber BV – v – Aslam [2021] UKSC 5.

The decision highlights, as Luca Ratti points out (EELC 2020/30), that, in some European jurisdictions, employment law now distinguishes between three types of people in the labour market. At one end of the spectrum, there are those employed under a contract of employment (‘employees’) who are seen as being in a subordinate and dependent position as regards their employer and, hence, need protection, for instance, from being paid too little for the work they do or being required to work excessive hours. At the opposite end, there are those who are in business on their own account undertaking work for clients/customers (‘self-employed’) who are seen as having a sufficiently independent position to be treated as being able to look after themselves in such matters as pay or working time.

Then there is an intermediate class of ‘worker’ who are self-employed but who provide their services as part of a profession or undertaking carried on by someone else. Because the degree of dependence of these workers is essentially the same as that of employees, they are regarded as being in economically the same position. Accordingly, the UK Supreme Court ruled that the Uber drivers enjoyed some, but not all, of the rights to which employees are entitled.

As the CJEU ruling in Case C-692/19 B – v – Yodel Delivery Network Ltd (EELC 2020, Issue 2) demonstrates, those who provide their services through digital platforms may still be regarded by the courts as self-employed. Here, it will be recalled, a parcel courier contended that he was a worker for the purposes of the UK Working Time Regulations. The CJEU concluded that the Working Time Directive did not apply to persons who were afforded the discretion to provide substitutes, to choose whether to accept tasks, to provide services to third parties and to fix their own working hours. The CJEU did add, however, that it was a matter for the referring tribunal to decide whether, in spite of all this apparent discretion, the courier’s ‘independence’ was merely notional and whether there was a relationship of ‘subordination’.

As the comments from other jurisdictions demonstrate, the issue is not confined to the UK. In Ireland, it was reported that the High Court had upheld a decision that pizza delivery drivers were ‘employees’ (EELC 2020/12); similarly, in Belgium, there were rulings that Deliveroo riders were also employees, albeit that these rulings were subsequently annulled because of procedural reasons (EELC 2020/43). In Germany, however, it was reported that the Munich Higher Labour Court had ruled that ‘crowdworkers’ were generally self-employed (EELC 2020/43).

Although not reported in EELC, the Italian Court of Cassation (by decision No. 1663 of 21 January 2020) considered the employment status of a number of persons who made home food deliveries on behalf of Foodora. The Turin Employment Tribunal had rejected their claims for a declaration that they were in an employment relationship but the Appeal Court, although holding that they were not ‘employees’, determined that they fell within an intermediate category lying between subordinate employment and genuine self-employment and thus were entitled to some of the protections, such as working hours and holidays but not dismissal, available to employees. The company’s appeal to the Court of Cassation was rejected with the Court going further and ruling that the riders were entitled to the full application of all employee protections.

Outside of the statutory protections available to individual employees, the most powerful of the rights available is the right to engage in collective bargaining. Competition law throughout Europe prohibits agreements between ‘undertakings’ which have as their object or effect the prevention, restriction or distortion of competition in services, with ‘undertakings’ routinely being defined as including individuals engaged for gain in the provision of a service. Trade unions and employers engaging in voluntary collective bargaining on pay and other terms of employment for employees, however, are not subject to competition law.

This leads into Thomas Dullinger’s article on the collective bargaining agreement in Austria for bicycle deliverers (EELC 2020/12). The author notes that “only those who can be qualified as employees” fall within the scope of the agreement and locates its negotiation within the context of combatting bogus or false self-employment. What remains to be seen is whether persons in the intermediate category of ‘employee-like workers’ would be allowed by the relevant national competition authority to come within the scope of such an agreement. In that regard, the comment from Germany is intriguing in that collective bargaining agreements there can ‘in principle’ also apply to self-employed persons, such as those who are ‘economically dependent’; in order to be so considered, more than half of the income must be earned with only one client.

This resembles the position in Ireland where, subject to ministerial approval, collective agreements can be negotiated on behalf of ‘fully dependent self-employed workers’, which term is defined as individuals who perform services for another person and “whose main income in respect of the performance of such services is derived from not more than two persons”: see the Competition (Amendment) Act 2017.

^{^[1]} Anthony Kerr is a Senior Counsel at the Bar of Ireland and an Associate Professor at the Sutherland School of Law in University College Dublin.