The examples of UBER, DELIVEROO, TAKE EAT EASY or GLOVO What do the Courts say in the United States, United Kingdom, France or Spain?
In the model of UBER the resolutions of the labor courts in the United Kingdom and the United States have recognized the employment status of workers. The legal arguments have concluded that: (i) UBER is not a technology company but rather intervenes in the provision of the service; (ii) drivers do not have their own and autonomous business organization, although they must provide the vehicle and bear the costs (including insurance) and can decide whether or not to provide the service and manage their own hours and days; and (iii) drivers are subject to the direction, control and instructions of UBER that intervenes in the selection of drivers; in the requirements on the type and condition of the vehicle; in the recommendations of how to treat clients; in the creation of online reputational evaluation systems; in setting the cost of the service; and in the possibility of disconnection or suppression of the driver's qualification.
In the model of DELIVERY there are, however, contradictory rulings in different jurisdictions. In Spain, the Spanish courts in Valencia declared the labor nature of the relationship between a delivery person and the company, while Madrid in a ruling based on the circumstances of the caso debated, the relationship is qualified as non-labour and the self-employed condition of the plaintiff delivery man is declared. In the United Kingdom, in a decision of the British Arbitration Committee of December 2017 it was pointed out that the RIDERS they were not employed on the grounds that the service could be provided by a substitute designated by the driver himself and that they had the option of providing services for several platforms simultaneously.
In the model of TAKE EAT EASY The Paris Court of Appeal has validated the legal regime of digital platforms with self-employed workers since there is no subordination of the delivery user for the following arguments: (i) the user is free to choose their schedule and the days they want to work by choosing the geographical area; (ii) there are no penalties in caso not to perform services; (iii) the user has their own material (bike, helmet, coat) except for the isothermal box provided by the platform and in its caso cell phone; and (iv) the training of the platform to the user is a short and fast process solely for the selection of candidates.
In the model of HEAD There is another recent judicial precedent in Madrid favorable to the consideration of self-employment for the following reasons: (i) the delivery man did not have a predetermined day or schedule by the company and decides the time slot in which he wanted to work; (ii) the dealer decides the orders that interested him and rejected the ones he did not want; (iii) the dealer freely decides the route to follow to each destination; (iv) the platform does not impose on you the class or number of orders that you had to place or the route to carry them out; (v) the platform does not have disciplinary power over the worker –despite the existence of a penalty system-, nor were there control systems over the dealer's activity –without the existence of a geolocator implying such control by the company-, that he freely decided his days off and did not have to justify his absences; (vi) the work tools are provided by the dealer himself, who also assumes the risk and fortune of his activity; (vii) the distributor's remuneration is linked to the amount of services provided.
Is a new regulation necessary in Spain for workers on digital platforms?
For all of the above, it is the specific circumstances of each caso those that determine the meaning of the judicial pronouncement. In conclusion, the qualification of the provision of services of the RIDERS, distributors or service providers through digital platforms, must be done according to the circumstances of each caso so that the judicial decision will not necessarily be the same if the circumstances are different.
However, this status quo is far from the ideal situation. To improve the working conditions of service providers (crowdworkers) and increasing the legal certainty of digital platforms, it would be advisable to intervene by the legislator to create a specific regulation that will probably have to bet on a new special employment relationship that exceeds the judicial legal qualification of dependent self-employed workers so that service providers have a Legal framework of individual and collective labor rights and social protection superior to the self-employed but, at the same time, the peculiarity of the lesser management, control and disciplinary power is recognized in digital platforms in accordance with the flexibility and voluntariness that the providers have to provide the services. In that direction it is already in force in France Law 1088 of August 8, 2016 that extends the protection in Social Security and accidents of work of the workers of the digital platforms and recognizes them union rights, of continuous training and of accreditation of the acquired experience. On United Kingdom, Taylor report has included recommendations to improve working conditions on the platforms, although they already have legal regulation that recognizes the distinction between employees (employed persons) and workers (an intermediate figure between the self-employed and dependent workers with specific rights in terms of working time, annual leave and minimum wage).
In short, if we want to improve labor relations on digital platforms, it will be necessary to regulate them.
