Spain à l’avant-garde on social protection for platform work?

Deliveroo ‘riders’ are workers and not self-employed, according to Spanish courts.

While many were enjoying the summer break, Spanish courts were busily setting an example for the social protection of platform workers. Three recent judgments confirmed that Deliveroo ‘riders’ have in fact an employment relationship with the platform and should be considered as workers, not self-employed.

Sacha Garben has stressed that the key social problem facing platform workers is their legal status. The mixed features of platform work mean it often does not fit within the framework of an employment relationship as conventionally understood. Online platforms tend to exploit the blurry lines of labour law for the profit of the companies behind them and at the cost of minimum social standards, such as the minimum wage, paid annual leave and maternity and social-security rights.

National responses across the European Union are divided, with some member states deciding in favour of the existence of an employment relationship while others support the idea of platform workers as independent contractors. Discrepancies exist also within member states, where different domestic courts have reached different outcomes (as in France, the UK and Spain). Inconsistencies between courts undoubtedly have a detrimental effect on individuals working with platforms, who lack legal certainty with regard to their employment status and derivative rights.

New impetus

Adding new impetus to the discussion, however three Spanish courts have recently decided in favour of the existence of an employment relationship.

The first judgment, delivered in June by the Social Court of Barcelona, represents the first collective lawsuit against an online platform in Spain. The judge declared the ten Deliveroo ‘riders’ to be bogus self-employed and concluded, after analysing a significant amount of data, that ‘riders’ lacked autonomy and were therefore to be considered ‘workers’.

In this case, the judge dismantled the alleged autonomy of the ‘riders’ by, on the one hand, claiming that Deliveroo’s arguments for autonomy (such as selecting time-slots) had a strong organisational character and, on the other, referring to the constant ‘control’ over the ‘rider’ by the company insisting on protocols or on the form in which the service needed to be provided.

Means of production

The other two cases concerned a lawsuit filed by the Spanish social-security authority against Roodfod Spain SL (again Deliveroo).

Also in June the Social Court of Valencia delivered a judgment confirming that the 97 ‘riders’ in the case were in an employment relationship with Deliveroo. The judge ruled in favour of the Spanish social-security authority and decided that the ‘real means’ of production was the digital platform in itself and not the phone and the bicycle, as had been argued in similar cases.

The court stressed that it was the platform which paired supply and demand and where restaurants, consumers and ‘riders’ registered, regardless of whether the execution of the service was feasible. The judge remarked, moreover, that the technical support offered by the online platform was precisely the source of success of the Deliveroo brand.

While the court noted that ‘riders’ needed to install the app, this was only to be able to follow the instructions from the company—instructions which had been followed iteratively during the timeframe covered by the case. Importantly, the court noted that the company was the sole holder of the information necessary for the management of the business system and that, although ‘riders’ offered their personal services, it was up to Deliveroo to distribute and assign each delivery.

Detailed instructions

In the latest judgment, in July, the Social Court of Madrid agreed with the previous ruling—that ‘riders’ were subject to an employment relationship. The judge concluded that during the period in which ‘riders’ were linked to Deliveroo they remained under usual labour conditions. Once the assignment was accepted by the ‘rider’, detailed instructions determined by Deliveroo allowed no apparent autonomy to the worker.

The judge stressed that ‘riders’ essentially executed a personal service under organised conditions directed by the company, which had sole control over the ‘Deliveroo’ brand, the online platform and all the information linked to it. The ‘detailed instructions’ criterion and the fact that ‘riders’ had no margin of autonomy once the assignment had been accepted seem to have been the decisive elements of the case.

None of the judgments is final as yet, as appeal is still possible before the social chambers of the supreme courts of the respective regions, but they display a shift from previous decisions where the focus lay on the autonomy of the ‘rider’ and the multilateral aspect of the platform. By contrast, these cases focused on the online platform as the main means of production and on the ‘control’ or ‘detailed instructions’ criterion, which in turn favoured ‘riders’ by identifying them as workers. Importantly, while previous cases were individual, these three represented collectives.

Enormous impact

Whether online-platform workers are classified as workers or self-employed has an enormous impact on the social protection these individuals enjoy. Indeed, because people working with online platforms do not necessarily fit into the traditional moulds of social-security systems they can be left without protection altogether. This is not only a problem for platform workers but extends to most non-standard forms of employment.

There is an evidently incoherent approach towards online-platform work within and among EU member states, frequently to the detriment of individuals who lack legal certainty and often any social protection. This is not a challenge regarding online platforms alone, but rather a larger struggle between a world of new forms of labour and the preservation of traditional social-security systems unable to meet its demands.

While the dynamism generated by digitalisation offers many possibilities, it entails the challenge of adapting social-security systems to respond to a highly dynamic, mobile and segmented labour market. The EU has presented a recommendation on access to social protection for workers and the self-employed, which will formally be adopted this autumn. Although the recommendation puts the challenge of non-standard employment at the top of the union’s agenda, given its non-binding nature it is rather doubtful that this alone will have the necessary bite to truly address the challenge of future-proofing social-security systems across Europe.