07 May Newsletter Vestius March 2019
Are Deliveroo couriers employees or not?
Within a period of six months, three legal actions have been conducted before the Amsterdam Court on the question whether Deliveroo couriers are employees or independent suppliers. In June 2018, cycle courier Sytze Ferwerda lost the proceedings he had instituted against Deliveroo; in the judge’s opinion, he was not a pseudo self-employed worker. On 15 January 2019, however, another judge found in two other cases (instituted against Deliveroo by trade union FNV) in a more general sense that Deliveroo couriers did indeed work under employment contracts.
According to Deliveroo, it has used only self-employed workers (independent suppliers) since 2017. But the law provides that an employment relationship is largely determined by practice. In the Ferwerda case, attention was drawn to the couriers’ high degree of freedom to decide whether or not they wish to work, which is not in keeping with an employment contract. In the FNV cases, the court found that this was a pseudo freedom that primarily existed on paper. The fact that couriers cannot negotiate the standard contract also sooner suggests an employment contract than independent supplier status. Finally, the court agreed with the FNV that delivering meals constitutes the transport of goods by road and therefore comes under that sector’s collective agreement.
Deliveroo has appealed the judgment. This will be the first time a Court of Appeal in the Netherlands addresses platform workers.
Directors of foundations may be personally liable
If a foundation incurs loss, a director of the foundation may be held personally liable in some cases. But in what circumstances is that possible?
Recent judgment of the Court of Appeal of ’s-Hertogenbosch
A case in point is the dispute between a school (a foundation), its director and its policymaker, the principal. They had set up a new school and entered into all kinds of contracts on behalf of that school, in the knowledge that the school did not have and would not have sufficient financing. They therefore took the irresponsibly high risk of the school being unable to perform its financial obligations. The Court of Appeal held them personally liable for the loss incurred by the school, because they had not acted in a manner that could be expected of an experienced director, acting reasonably, in those circumstances. In the Court of Appeal’s opinion, the fact that they performed their work without remuneration, had been appointed only temporarily and had insufficient capabilities did not detract from their responsibility.
For more information or advice on this subject please contact Michiel van Haelst .
Is alcohol and drug testing in the workplace a violation of privacy?
Staff manuals often contain provisions that obligate employees to cooperate in alcohol or drug testing. In some cases the policy is that such tests may be taken at random, in other cases only if there is reason to do so. Such policies are common in industry in particular, in light of the strict safety requirements.
Some time ago the Dutch Data Protection Authority (“AP”) investigated the alcohol and drug testing policy at the Uniper company. The AP had been informed that Uniper’s employees were required to agree to at random alcohol and drug testing. Sanctions would be imposed if they refuse to cooperate. Also, the outcome of the alcohol tests already performed were apparently stored in personnel files.
The AP found in its report that not only this implemented policy, but even the possibility of its implementation was in breach of privacy legislation, since policies are drawn up to be implemented. If there is no statutory basis for the policy, the AP may impose significant fines. One way of avoiding such fines is to have the company doctor perform the tests in question. But that approach is also not without risk. It remains to be seen whether the legislature will provide the necessary statutory basis.
Avoid disputes: draw up a sound cooperation agreement
It is essential when persons work together to draw up a sound cooperation or shareholders’ agreement in which the partners make specific agreements on the cooperation and in particular on the termination of that cooperation. What notice period applies, is the departing partner entitled to goodwill, how are the financial affairs settled, does a non-compete clause apply and may a departing partner take employees with him to a new firm?
Such an agreement did not exist in a case recently heard by the Enterprise Court. The case related to one of the three partners in an accountancy firm who had set up his own firm and had offered his shares to the other two partners. They did not agree, but sold the two subsidiaries to companies in which they themselves were the managing directors and shareholders for a low price that was not at arm’s length. An empty shell therefore remained and the partner who had given notice was left empty-handed.
Briefly stated, the Enterprise Court disagreed with this procedure and found that an arm’s length price had to be paid for the sale of the two subsidiaries. The Enterprise Court also made it clear that the partners should try to reach an amicable agreement. A sound shareholders’ agreement could have avoided a great deal of trouble in this case also.
For more information or advice on this subject please contact Paul Hendriks .
Vestius joins XLNC
Vestius has joined XLNC, an international alliance of independent accountants, lawyers and management consultants that provides high-quality services. XLNC makes it possible for Vestius to refer clients to other XLNC members. By joining this network, Vestius makes it easier for its clients to do business outside the Netherlands, for instance in the case of cross-border mergers and acquisitions. We also believe that this membership will strengthen Vestius’s international legal practice.
More information can be found at www.xlnc.org. Please contact one of our partners if you require additional information.