Deliveroo Netherlands B.V. v FNV – Supreme Court, 24 March 2023 ECLI:NL:HR:2023:443

Deliveroo initially employed its riders but began engaging them as independent contractors in 2018. FNV challenged this classification.

The Amsterdam District Court and Court of Appeal found that the riders worked under employment contracts. Deliveroo appealed to the Supreme Court, relying particularly on the riders’ freedom to choose when to work and their contractual right of substitution.

The Supreme Court held that all circumstances must be considered together. Relevant circumstances include:

• The nature and duration of the work;

• How the work and working hours are determined;

• Organisational integration;

• Personal performance;

• How the agreement was created;

• How remuneration is determined and paid;

• The amount of remuneration;

• Commercial risk; and

• Genuine entrepreneurial activity.

No individual circumstance is automatically decisive.

The riders’ freedom to choose when to work and their ability to arrange substitution could indicate independence. However, these circumstances did not exclude employment.

The Court of Appeal was entitled to consider their limited practical significance together with Deliveroo’s organisation of the work, the payment structure, organisational integration and the riders’ limited commercial risk.

The Supreme Court rejected Deliveroo’s cassation appeal. The finding that the riders worked under employment contracts therefore remained in place.

The judgment became the leading Dutch authority on the distinction between employment and self-employment. Its framework applies beyond food-delivery platforms to other relationships involving freelancers.