Insights
Court of Appeal Amsterdam: Uber drivers are independent entrepreneurs
In its well-known Deliveroo ruling, the Dutch Supreme Court confirmed that whether a working relationship qualifies as an employment contract depends on the overall picture. All relevant facts and circumstances must be taken into account. One important factor is whether the individual operates, or is able to operate, as an entrepreneur in the market. As a result, workers performing similar activities within the same organisation may still be classified differently: one may be considered an employee, while another may be genuinely self-employed.
This issue was also at the heart of the case between trade union FNV and Uber, which was reviewed by the Amsterdam Court of Appeal. FNV argued that Uber drivers should be regarded as employees rather than self-employed contractors. Uber, however, was supported by six of its drivers, who stated that they work as independent entrepreneurs. The Court of Appeal agreed with these drivers and rejected FNV’s claim.
Entrepreneurship decisive
What makes the FNV v Uber case particularly interesting is that the drivers’ level of entrepreneurship proved to be decisive. According to the court, sufficient entrepreneurial characteristics can shift the balance towards a contract for services rather than an employment contract. At the same time, the court emphasised that it could not issue a general ruling applicable to all Uber drivers. The reason is that there are significant differences between drivers in how entrepreneurial they are. As a result, some drivers may qualify as self-employed, while others may still be regarded as employees.
In its assessment, the court placed particular weight on the fact that some drivers had made substantial investments in their vehicles and bore the financial risks associated with those investments themselves. The court also considered that Uber drivers generally earn more than employed taxi drivers and enjoy a high degree of freedom when deciding whether or not to accept rides.
Conclusion
The FNV v Uber decision confirms the approach taken earlier by the Supreme Court and highlights an important message for businesses: working relationships that appear similar on the surface may still be classified differently in legal terms. Individual circumstances matter. In this case, external entrepreneurship was the decisive factor.
External entrepreneurship is also a key criterion in both the proposed VBAR Bill and the proposed Self-Employed Persons Act, both of which were created to improve the position of bogus self-employed persons. Whether this legislation will now move forward remains to be seen. We will keep you updated.
