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Italy – tribunal’s reasoning on why food delivery riders are not employees published

Written by
Toffoletto de Luca Tamajo, working in employment law since 1925.
On 11 April 2018 an Italian employment tribunal held that riders working for the food delivery app service Foodora were self-employed contractors and not employees. This article returns to the case to examine the reasoning behind the decision, which was published on 7 May.

Previously on the Italian delivery riders case

The Turin Employment Tribunal rejected a claim by six Foodora riders who sought recognition of their employee status and presented a number of related claims (including for unfair dismissal and privacy-related damages). We reported on the outcome of the case here. The full text of the decision was published on 7 May, so we can now take a more detailed look at the reasoning behind it. It is a non-binding precedent based on the actual submissions in the case and the judge makes it clear that it is not a verdict on the so-called ‘gig economy’ model as a whole. It is, nevertheless, the first decision on the status of delivery riders in Italy and it provides food for thought for anybody looking at these new forms of work born from technological innovations.

The grounds for the decision

The decision was taken after written submissions from both parties and oral witness statements. The main argument the judge used to declare the riders were independent contractors was that they could refuse to work and the company was not obliged to provide work:

‘If the employer cannot require performance of the service from the worker, neither can he exercise any control or organisational power over that performance’

This was essentially the reasoning behind the last decision made by an Italian court in a comparable case: the ‘pony express’ messenger case in the 1980s.

The judge also considered other factors in making his decision, including the fact that the parties specifically defined the relationship as one of self-employment when signing the contract, the fact that the degree of direction or control exercised by Foodora over the riders proven in the evidence submitted was not consistent with employee status and that the scope of possible monitoring by Foodora was incompatible with an employment relationship. The ability to exercise disciplinary powers over the workers, another sign of employment according to case law, was also ruled out by the evidence presented. ‘A telephone call to check the position cannot be considered a specific order,’ wrote the judge.

Leaving aside further Italy-specific arguments in the decision, the Turin ruling indicates that there are a number of technical reasons, most importantly not being obliged to work or provide services, why this business model is compatible with independent work. Multiple comments in the press and the claimants’ decision to appeal the ruling indicate that there will be more discussion and decisions on this subject going forward.

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