Appeal court deems Foodora riders self-employed with certain workers' rights

The Turin Court of Appeal recently heard the first appeal decision in Italy concerning the gig economy which examined the classification of Foodora food delivery riders (Decision 26/2019). The court partially reviewed the first-instance decision, which had found that Foodora riders should not be considered or classified as employees, thus rejecting the claimants' requests concerning reinstatement, wage differences and compensation for damages.

The Turin Court of Appeal confirmed the first-instance judgment to the extent that it found that Foodora's riders were not employees after having considered:

• the will of the contracting parties (which had mutually agreed to self-employment contracts);
• the lack of obligation on riders to be available to work and accept deliveries;
• Foodora's lack of effective authority or disciplinary powers over riders' work schedules; and
• Foodora's directives for, instructions to and control over riders' work, which were found to be necessary due to the kind of service provided (ie, the need to coordinate the time of delivery and the service's operative aspects.)

Although the Turin Court of Appeal confirmed the first-instance interpretation according to which riders should not be qualified as employees, the court held that they cannot be considered fully self-employed either. Through its interpretation of Article 2 of Legislative Decree 81/2015 (which provides that where the organisation of work is unilaterally decided by a principal, subordinate employment rules apply), the court stated that Foodora riders belong to a third type of relationship between self-employment and subordinated employment.

According to the court, food delivery riders must be granted the same rights provided typically to employees in the same sector (eg, the salary set out in the National Collective Agreement for employees in the "Logistics, Freight transport" sector).

This first merit (not final) decision sees Italy join the ongoing debate in other jurisdictions (both in the European Union and beyond) regarding the classification of gig economy operators.(1)

For further information on this topic please contact Francesco Pedroni at Stanchi Studio Legale by telephone (+39 02 546 9522) or email (francesco.pedroni@stanchilaw.it).

Endnotes

(1) For example, from decisions on subordinated workers (eg, the Foodora case in Australia, the Pimlico Plumbers and Uber cases in the United Kingdom and the taxi driver case in Switzerland) to genuine self-employed workers (eg, the UK High Court decision in the Deliveroo case).