Landmark Ruling in Self Employed Workers Case

There are many companies in Spain who force workers to subscribe to the social security system as being self-employed (autonomo), whereas they should in fact be employed on full employment contracts, with the company paying the appropriate social security contributions and giving the worker their statutory rights.

However, the practice has once again been proved illegal, this time by the confirmation of a case brought by the Social Security office against the delivery platform Deliveroo.

The case in Madrid was brought about as Deliveroo wanted their 500 delivery riders to be self employed, rather than issuing them with a contract, but the court has ruled that they should be considered as workers and not freelance.

The ruling clearly states that the riders who were operating on behalf of the company, “should have been hired and registered in the general Social Security scheme paying the corresponding contributions; and they should not be autonomous, paying the fees themselves”.

To reach that conclusion, the judge takes into account that “the distributors have essentially executed a personal work commitment under conditions organised and directed by the company, which is the only one that controls the Deliveroo brand, its computer application and all the information that is detached from it.”

In his text, the judge points out that the company defines “strict rules” on how riders carry out deliveries, and thus limited to aspects that would allow the operatives to be autonomo.

This sentence ends a battle which has been heard in the courts to clarify whether the distributors of digital platforms are salaried or autonomous. The company announced that it intends to appeal the ruling, as it did a few weeks ago when the decision of another court in Valencia was heard, where a judge already considered that the workers in the scheme there were “false autonomos”.

Although it is already the case that an operative who works mainly for, or has restrictions imposed by a company should be contracted, as has been the decision in many court hearings throughout the country when workers have taken their “employers” to court and won, the sentence this week is the most impactful yet.

The judge pointed out that “multiple considerations lead to the conclusion” that the Social Security office is correct in considering the distributors as employees.

The company, in its defence, alleged as proof that the riders were self employed included the fact that they owned their own bicycles and mobile phones, whilst Deliveroo is only an intermediary that puts them in touch with customers. The judge, however, does not believe it to be the case. “It can be understood that the distributors were owners of several material resources, especially their vehicles with which they carried out their distribution work. However, this is not enough to rule out the alienation, considering that the most important means and assets for development of the activity are not those, but are the Deliveroo application, controlled and provided by the company for use by the dealers, and the corresponding brand”.

The ruling continues that the provision or organisation of work does not depend on the riders themselves, but on the company. “The distributors provided their services in a completely organised way and governed by the defendant company, even in its smallest details. At the outset, the existence of instructions to the distributors that went beyond the entrustment of the service itself establish with all the conditions under which it must be provided, conditions that the company checked and evaluated,” it said, pointing out that, for example, “at the time of hiring the distributors they were presented with an explanatory video where they were encouraged to present themselves as Deliveroo workers”, and are taught how they should make the collection and delivery at the address the customer.

Distributors were also given a very explicit guide to behaviour or internal rules. “The company has not limited itself to hiring a food transport service in which the essential is the delivery itself without going into the detail of how it is to be done, but it has established with precision the way in which It has to provide this service, homogenising it for all distributors, who are encouraged to present themselves as part of Deliveroo,” it says.

“The real margin of autonomy is thus limited to aspects that I believe are not determining in order to classify the relationship as labour, as is the choice of means of transport (as mentioned, of very relative importance in this case) , the concrete route (although it seems clear that they will choose the shortest) and the possibility of rejecting the order,” the judge explained, and even the right to refuse orders “is very limited and can later have consequences.”