The "Ley Rider" does not live up to expectations.

Dr. S-W – 09/2021

A law that is supposed to give drivers working via electronic platforms more social rights came into force in Spain on August 12. However, some platforms are apparently successful in dodging the new regulations. It has only succeeded in shifting the burden of proof: an employment relationship is assumed, if not proven otherwise, i.e. a self-employed activity exists. The reaction of the various platform operators is quite different. Deliveroo announced it would suspend all of its operations in Spain. This means that more than 3,000 drivers will lose their jobs for the time being. Glovo, the largest platform operating in this sector in Spain, will only hire 2,000 of its approximately 12,000 drivers on a permanent basis and it is using gateways opened up by the European Court of Justice in the "Yodel" case for the remainder.

According to this, even relatively minor changes in the access algorithm are sufficient to justify classification as self-employed. However, Glovo's practice is already being challenged by trade unions before the Labour Inspectorate. More national court proceedings are expected. The potential plaintiffs rely on a decision of the Spanish Supreme Court, which allegedly presumes an employment relationship exists whenever the software owned by the platform operator is used by the platform worker. Two other platforms - Stuart Delivery and Just Eats - have announced that they will be hiring a larger portion of their drivers in directly the future - but the exact percentage remains unclear for now. 

Another strategy used by the platform operators is to avoid the status of being an employer by using a subcontractor. This is the path taken by Uber Eats and, to some extent, Glovo.  However, this strategy also faces legal opposition.

Overall, it can be stated that the "Ley Riders" is provoking further legal uncertainties and is currently of little help. This means that there will be a lot of work to do in the courts yet again. This experience also casts a less than favourable light on the EC's plans to initiate a form of burden of proof reversal throughout Europe as part of its announced initiative on platform working.

A recent development in Germany should be mentioned as an aside here. The Lieferando platform - now part of the Dutch “Just Eat” group - had offered regular employment to its drivers in the past. However, this was mostly done on the basis of fixed-term contracts. Deliveroo now wants to move away from this practice and hire drivers on a permanent basis in the future