Last week, the Madrid Labor Court published judgment 53/19 of February 11, ruling on two fundamental questions. The first concerns whether the complainant (worker providing delivery services for a well-known tech platform) should be classified as an employee of the company. Having settled that, the question was whether the company’s termination of the contract was unlawful, due to violating the fundamental right to freedom of expression.
The respondent company is defined as an intermediary platform that connects customers seeking a certain service with providers, as well as delivery riders who provide pick-up and delivery services. On the first issue, the most important aspects that were considered in this ruling to classify riders of the platform as employees are:
- Absence of control in the production process: A self-employed worker works while maintaining control of the production process until sale in the market. However, the judge considered that the riders working for the platform do not have that capacity because, for example, they cannot choose their suppliers or freely set their price.
- Virtual platform: The riders cannot work independently from the platform’s application, so if a rider decided to do business on his or her own, that kind of activity “would be doomed to fail.”
- Employment by a third party: The respondent company receives the fruits of the rider’s efforts, including potential risk from performing the work. The court considered that it was not proven that riders assumed the risks of failed transactions, as they did not seem to respond to the end customer or the service provider for any damage caused. In addition, the price of the service is not set by the provider but by the app, which is even able to change the price. The platform processes the customer’s payment, although the rider is subsequently sent the invoice.
- Choice of rider: The application offers the possibility of choosing the rider according to anticipated demand, the number of riders available or the rider’s profile (efficiency, number of orders delivered or customer rating).
- Permanent availability of the worker: The respondent company pays riders according to the microtask they have been allocated, so the amount of time they are “on call” to the business without being allocated a job is a cost saving that depends on a series of factors controlled by the platform.
- Automated oversight systems: The geolocation system is a means of controlling the riders’ behavior, enabling the company to know at all times where they are and to pass on that information to customers and providers.
- Other features indicated in the judgment: The imposition of a working week (40 hours), deadlines for completion of the work, the ban on branding other than that provided by the platform, the obligation to give advanced notice of a break in the working day, etc.
Based on the above, the judge considered that the potential freedom and flexible working hours enjoyed by the riders (which seem to be inherent to these new forms of gig work) hold limited importance because of the abundance of riders available to work—if one is absent, he or she will rapidly be replaced by another. Therefore, the judge considered that the legal relationship between the complainant and the company must be classified as an employment one, and even signaled that there was certain “legislative sluggishness” to legislate these new special forms of gig work.
There are certain issues that the judgment does not touch on, which were addressed in other court judgments made on the same company (referenced below), which are all equally as important: liability for damage and the rider’s assumption of risk, the rider’s freedom to organize their own work, that the instructions for the work are given by the customer, freedom to reject work requests, the possibility of replacing the rider, and more.
Two other judgments have recently been handed down by the courts (Madrid Supplementary Labor Court No. 17, judgment of January 11, 2019, and Madrid Labor Court No. 39, judgment of September 3, 2018): both found the delivery riders of the platform to be TRADEs (financially dependent workers). It is curious to see such a contradiction so shortly after those judgments, but that certainly points to the complexity of this case.
The main grounds for classifying those delivery riders as TRADEs were:
- Organization of work: Riders are free to organize their work and communicate directly with the customer. In addition, the particular instructions for each job are given by the end user (not the platform), so the riders are free to choose the timetable they want to work, the jobs they want to take and the best route to get to each destination. The rider can also be replaced, which takes away the highly personal nature of the labor relationship.
- Liability: It is the riders that respond to potential damage in the course of their work, so there is no passing-off of risk.
- Work tools: The main work tools are a cellphone and a means of transport, both of which are provided by the rider.
- Geolocation system: This not a surveillance tool for the company but a way of tracking mileage.
- Rating system: This is a way of rating riders for preferential access, but in no way should be construed as a penalty on them.
Therefore, the judgments considered that the reality was vastly different from an employment relationship, as all the above features show a degree of autonomy and independence. However, it is worth noting that there was no judgment on whether the online platform acted in a way that could make it be considered an online employer.
Looking at the key takeaways of those judgments, it seems that the contradiction among the courts boils down to the importance that each judge gives to some evidence over others (weighting of evidence). However, as the judgments have all been made at the initial stage of the legal process, it will be worth watching out for settled legal opinion at some point in the future.