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On the heels of the judgments handed down by the Valencia and Catalonian labor courts last June ruling that the riders of Deliveroo and Take Eat Easy, respectively, were employees of the digital platform they worked for, Glovo has now had its turn. However, in contrast, Madrid Labor Court No. 39 has, in this case, ruled that the relationship between this digital platform and its glovers is a commercial relationship, not an employment relationship, and thus they are in fact self-employed contractors.

The Madrid labor court judge ruled that the services provided by the rider—in this case, motorized —could not be considered an employment relationship because it did not involve the necessary dependence and subordination, for the following reasons:

The riders did not have a work schedule or working hours, because the riders decided when to work and what orders to deliver and could even refuse orders after they had taken them. The judge further ruled that riders had full control over their activity, as they freely decided which route to take for each order and how to effect the delivery.

Glovo had no disciplinary control over the riders, which according to the judge demonstrated the self-organizing capacity inherent to a self-employed contractor relationship.

The riders take the risk and liability for each order, which indicates that they are not subject to the company’s internal organizational structure. The main tools of the trade (motorcycle and cellphone) were the property of the rider (surprisingly, no reference was made to the economic value of the software application).

The riders’ earnings depended directly on the number of deliveries made and varied from month to month.

Glovo did not require riders to justify their absences; they merely had to give notice. Glovo also did not decide which days (to which economically dependent self-employed workers—known by the acronym “TRADE” in Spain—are entitled) the riders could take off work.

– Lastly, there was no exclusive agreement between the parties, and riders could provide their services to other companies.

What differences are there between the·Glovo case and the Deliveroo and Take Eat Easy cases, and what was the reason for the judge’s different finding?

The most notable differences between this judgment and the Deliveroo and Take Eat Easy judgments, and the grounds for the different rulings, included the riders’ ability to refuse orders–even after they had accepted them—the riders not being subject to any specific work schedule, and their freedom to provide services to other companies.

However, the conclusion reached in this case also differed from the Deliveroo case in the judge’s subjectively different value judgment concerning certain circumstances surrounding provision of the service:

  • The clearest example is the differing considerations in the judgments concerning the business structure. In the case of Glovo, the judge considered the motorcycle and cellphone to be the main tools of the trade. However, in the Deliveroo case, the judge affirms that, although the cellphone and bicycle belong to the delivery rider, business organization is not vested in the riders, because for purposes of organizing the business activity what is relevant is the software application owned by the digital platform.
  • Also, while the geolocation system of the Deliveroo riders was held to be an element contributing to the riders’ dependence on the digital platform and characteristic of an employment relationship, in the Glovo case, the judge ruled it not to be an instrument of control but rather a means for counting mileage to pay the billing, without there being any indication that it was used to control the route taken by the rider.
  • Lastly, in the Deliveroo case, the fact that the company decided the price of the services provided was taken as an indicator of employment, whereas this was not so in the case of Glovo, in which riders are paid nearly the full price Glovo sets for its customers, with the company taking only a small cut.
  • To conclude, the rating system used by the company is another factor to be taken into account when evaluating the judgment. Although in other cases, rating systems used by digital platforms have been regarded as measures of indirect control or of disciplinary authority—the judgment does in fact acknowledge that lowering ratings for riders not available in the requested time slots is an indicator of employment, though one held to be insufficient to rule the relationship to be an employment relationship—in the judge’s view, Glovo’s rating system is not a means of control or punishment but instead an incentive used to reward certain workers for higher quality or a greater volume of services, but never as a means of punishing lower rated riders.

 

In short, this judgment—its reach and how it is received by other courts and tribunals remain to be seen—frames what will unquestionably be the most controversial key issues when claiming or denying that there is an employment relationship between workers and digital platforms in the ever growing and uncontainable on-demand economy.

 

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marta.villaverde@cuatrecasas.com

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