Ruling on April 22, 2020
Authority: Court of Justice of the European Union
Parties: B / Yodel Delivery Network Ltd UK
Subject: When a person is engaged under a services agreement which stipulates that he is a self-employed independent contractor this person isn't a 'worker' for the purposes of Directive 2003/88/EC if he enjoyes discretion in certain areas.
Summary of facts: B is a neighbourhood parcel delivery courier. He carries on his business exclusively for the undertaking Yodel, a parcel delivery undertaking, since July 2017. Couriers are not required to perform the delivery personally, but may appoint a subcontractor or a subsitute.
Legal question: Is a neighbourhood parcel delivery courier a 'worker' for the purposes of Directive 2003/88/EC?
Considerations: Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time must be interpreted as precluding a person engaged by his putative employer under a services agreement which stipulates that he is a self-employed independent contractor from being classified as a ‘worker’ for the purposes of that directive, where that person is afforded discretion:
– to use subcontractors or substitutes to perform the service which he has undertaken to provide;
– to accept or not accept the various tasks offered by his putative employer, or unilaterally set the maximum number of those tasks;
– to provide his services to any third party, including direct competitors of the putative employer, and
– to fix his own hours of ‘work’ within certain parameters and to tailor his time to suit his personal convenience rather than solely the interests of the putative employer,
provided that, first, the independence of that person does not appear to be fictitious and, second, it is not possible to establish the existence of a relationship of subordination between that person and his putative employer. However, it is for the referring court, taking account of all the relevant factors relating to that person and to the economic activity he carries on, to classify that person’s professional status under Directive 2003/88.
Ruling: A person isn't considered a 'worker' when that person is afforded discretion to:
- use subcontractors of subsitutes;
- to accept or not accept tasks offered by his putative employer of can set a maximum number of those tasks;
- provide his services for any third party, including competitors, and
- fix his own hours of work within certain parameters.
Furtermore the independence of the purson must not appear fictitious and it should not be possible to establish the existence of a relationship of subordination between that person and his putative employer.