On May 7, 2018 the Labour Court of Turin handed down a landmark decision in a case brought by delivery bike drivers or couriers (“riders”) working for Foodora, an online food delivery company that offers meal delivery in 10 countries worldwide, including Italy.
Amongst other things, the riders, each with a freelance work contract with Foodora, sought a relabeling of their work contracts from the “freelance” category to the “subordinate employment agreement” category. In effect, the relabeling of the work contract requested would give rise to an obligation on the part of Foodora to pay the riders an increased wage as well as to pay certain social security contributions not previously paid; in addition, the riders would gain certain protections provided by Italian law relating to the dismissal of employees (compensation and/or reinstatement in case of unlawful dismissal).
There is an abundance of case law relating to the differences between a freelance employment relationship and a subordinate employment relationship, both of which generally relate to the employer’s right to give orders and directives to the worker. Following this case law, and the fact that the riders in this case were completely free to accept or refuse any meal delivery requests from Foodora, the Court decided that the relationship between the riders and Foodora fits within the category of freelance, not subordinate, employment.
The Court’s decision may be appealed on the basis of certain provisions of Italy’s labor law reform, which was passed in 2015 (the “Jobs Act”). One of the objectives of the Jobs Act was to make subordinate employment more attractive to companies/employers, by providing them with economic incentives to offer subordinate contracts, and also by weakening some of the protections previously provided to employees, for example, in the case of unfair dismissal. At the same time, the Jobs Act aimed to reduce as much as possible the “grey areas” pertaining to freelance workers, in particular for those freelance workers who are subject to the control of the employer. In this respect, the Jobs Act introduced a specific rule which provides that if the employer has the power to determine the place and the time in which the freelance worker has to carry out his or her activities, then all the aspects of the subordinate employment relationship shall be applicable to that worker. As to this point, the Court expressly stated that since Foodora did not have the power to unilaterally determine the place and the time of the riders’ activities, the riders could not be considered subordinate employees.
In the event that the Foodora case is appealed, it is likely that this will lead to a discussion as to the fine line between the right of the employer to dictate to the worker the place and time for the requested activity and merely coordinating the activity that it requests the worker to perform in a way that is less invasive.
The Court’s decision and the decision of any appellate court could have far reaching implications for all companies active in Italy’s growing Gig economy.