Uber case: external entrepreneurship is equally important when assessing employment relationship

On Feb. 21, 2025, the Supreme Court answered preliminary questions in the Uber case. A preliminary question is a question of law from a court to the Supreme Court on the interpretation of a rule of law. The central question in the Uber case is whether the employment relationship between the Uber driver and Uber, is an employment contract or a contract for services. In short, how should the employment relationship be qualified?

In the context of this question of qualification, all the circumstances of the case must be taken into account. In particular the nine points of view previously formulated by the Supreme Court in the Deliveroo case of March 24, 2023, in which the same question was addressed.

Entrepreneurship as a point of view
The preliminary questions mainly concern the ‘entrepreneurship’ aspect. In the Deliveroo case, the Supreme Court formulated the ‘entrepreneurship’ aspect as the ninth point of view as:

“What may also matter is whether the person who performs work behaves or is capable of behaving as an entrepreneur in the economic sphere, for example, in terms of acquiring a reputation, in terms of acquisition, in terms of tax treatment, and in view of the number of clients for whom he works or has worked and the length of time for which he usually commits himself to a particular client.”

In line with the Deliveroo case, the Supreme Court confirmed in the Uber case that this ninth point of view does not outweigh (or diminish) the other eight points of view. Thus, there is no reason to rank the points of view. The Supreme Court reiterated in the Uber case that in answering the question of whether there is an employment contract, one of the factors to be assessed is whether the person (the worker) who performs the work behaves, or is capable of behaving, as an entrepreneur in the course of business.

The Supreme Court explains that it is possible for an employment relationship between the principal/employer and one worker to be an employment contract, while the same type of contract with another worker (and the same principal/employer), is a contract for services. For example, because the latter worker behaves in the course of business as an entrepreneur while the former worker does not. In addition, it clarifies that both circumstances inside and outside the relationship between the worker and the principal/employer must be taken into account when assessing whether the worker is acting as an entrepreneur in the course of trade. In short: not only how the worker ‘acts’ in the qualifying employment relationship is considered, but also how this worker acts (as entrepreneur or not), outside the qualifying employment relationship (external entrepreneurship).

Conclusion
With this ruling, the Supreme Court clarifies the viewpoint of “entrepreneurship” arising from the Deliveroo case when determining whether there is an employment contract or a contract for services.