October 31, 2020

the ‘riders’ are workers and the company “is not a mere intermediary”


Habemus judgment. The Supreme Court advanced an important ruling last Wednesday: the Plenary of the Fourth Chamber of the Supreme Court concluded that a Glovo dealer was false self-employed, on the first occasion that the High Court analyzed the relationship between a digital delivery platform and its messengers (also called riders). The Supreme Court communicated its verdict, but the full sentence was not yet ready, which elDiario.es has already been able to consult. The magistrates dismantle Glovo’s labor model, on which they conclude that “it is not a mere intermediary” but rather “carries out a work of coordination and organization of the service”, and they declare that its messengers are employees.

The dealer who beat Glovo in the Supreme Court: "The company offered me money to leave it before the first trial, but not for a million euros"

The dealer who won Glovo in the Supreme Court: “The company offered me money to leave it before the first trial, but not for a million euros”

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“The dealer has a very limited autonomy that only reaches secondary issues”, includes the ruling, such as what means of transport to use in his delivery and the route to follow. But the boss, the boss, is Glovo. The company “provides delivery and courier services by setting the price and payment conditions for the service, as well as the essential conditions for the provision of said service,” the ruling contemplates, for which Judge Juan Molins García-Atance is the speaker.

The Minister of Labor, Yolanda Díaz, insisted this week that “a young man with a bicycle is not an entrepreneur”, referring to the distributors of these delivery platforms, such as Glovo, Deliveroo and Uber Eats. This is also understood by the Supreme Court magistrates, who point out that who has in their possession the “essential assets” for the business is Glovo, whose fundamental element is the application of the platform, the app. “The actor only had a motorcycle and a mobile phone. These are accessory or complementary means”, warns the failure, while “the essential infrastructure for the exercise of this activity is the computer program developed by Glovo that connects shops with customers “.

The magistrates maintain in a general way that Glovo “uses distributors who do not have their own and autonomous business organization, who provide their service inserted in the employer’s work organization, subject to the management and organization of the platform.” Among the control capabilities, the Supremo highlights the ability to continuously monitor the delivery people by GPS.

As other courts have ruled, the Supreme Court considers that the freedom of schedules that Glovo defends to justify the autonomy of the distributors is “theoretical”, but that in practice the system of valuation of the couriers (designed by Glovo) “conditions their freedom of choice of schedules because, if it is not available to provide services in the time slots with more demand, its score decreases and with it the possibility that more services will be ordered in the future “. In the end, rejecting orders, not distributing in assigned hours and that supposed freedom not to work is equivalent to “losing employment and pay.”

The magistrates recall other more notorious labor arguments, such as the company that unilaterally decides the prices and rates of the service, with customers, riders and restaurants unilaterally, without the ability to negotiate on the part of the dealer. Also, among the indications of employment relationship, Glovo gave the dealer a credit card with which he paid orders for customers in restaurants.

This was already invented

The Supreme Court ruling was awaited with great interest as it was the first to analyze the employment relationship between a rider and a digital platform, after the Labor Inspection and numerous courts have concluded that the work model of these companies is fraudulent, for feeding on the so-called false self-employed. The High Court also considers it this way and recalls that in many cases the labor relationship has become more flexible in “post-industrial society”, but the magistrates adapt the notes that define that a relationship is labor to the reality of each moment.

The Court makes a review of several similar cases of false self-employed in which their magistrates and European justice have already ruled. In 2004, the Court of Justice of the European Communities found that teachers hired on an hourly basis through an agency were workers subject to equal pay for employees. In 2017, European justice determined about Uber that the company was not an intermediary eitherInstead, it functioned as a transport company and its drivers had to be employed by the multinational.

But the Supreme Court goes much further back, to 1986, when it considered some package messengers as workers, who distributed with their motorcycles and paid for their gasoline, but they worked according to rates established by a company and this ordered them the trips to be made. Does it sound like something? He also remembers another similar sentence that same year and others in 1988. In 2000, he declared that a cleaning woman was false autonomous although she had freedom of hours to clean a community of owners. Despite this, and that she could even be replaced by a relative in case of absence, “the freedom of schedule does not mean the absence of submission in the execution of the work to the will of the employer,” the judges warned then.

In 2017, the Supreme Court also declared the employment relationship of the translators of an Administration who provided services through a computer platform, Ofilingua. Although the translator could reject the translation requests without any theoretical penalty, “it is true that, given the relationship established between the parties, if he does not go, he runs the risk that he will not be called back,” the sentence pointed out.

The magistrates now look at the Glovo case with their “workforce” magnifying glass and reach similar conclusions. The multinational has applied technology and data crossing to the distribution and the relationship with its messengers, but this is defined as labor as in the previous cases. “The existence of a new productive reality forces us to adapt the notes of dependency and alienation (which define the employment relationship) to the social reality of the time in which the norms must be applied,” the judges recall.

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