Introduction
More and more voices are chiming in on evolving issues relating to the qualification of employment relationships and the rules applicable to delivery people in an era when new forms of work, often managed through technological platforms or with the help of other technological and electronic tools, are increasingly common. Specifically, we are talking about delivery workers (“riders”) who deliver food and other small items by bicycle or scooter.
Our analysis aims to provide an overview of the latest developments on the riders’ position in Italy.
Major investigation by the Milan Public Prosecutor’s Office (“Procura di Milano”) into food-delivery companies
The most recent news in this area is the large investigation launched by the Milan Public Prosecutor’s Office (“Procura di Milano”) into food-delivery riders engaged by the four big delivery companies: Just Eat, Uber Eats, Glovo, and Deliveroo.
The outcome of the investigation was announced on February 24: (i) platforms received fines of €733 million for breaching “safety-at-work regulations” (mainly in connection to road accidents); (ii) going forward platforms will have to hire about 60,000 riders as “coordinated and continuous workers,” i.e. riders will no longer be self-employed but will be classified as “para-subordinate workers” and will benefit from certain protections, e.g., minimum wage, social security contributions, and the right to sick leave.
The four platforms will have 90 days to comply; otherwise the Milan Public Prosecutor’s Office will issue an injunction and proceedings will go ahead. Conversely, each delivery person would be entitled to file a lawsuit before the employment tribunal in order to be hired, and the Italian Labor Office (“INL”) could take action as well in order to enforce those decisions. Furthermore, the Milan Public Prosecutor’s Office has also opened a tax investigation targeting Uber Eats in order to verify whether the company’s Italian operations meet the threshold for permanent establishment in Italy. This investigation will be extended to the other platforms.
According to the INL, riders must be classified as para-subordinate workers because “the mode of execution of the work performance is imposed by the organizational model adopted by the platform, through the app that each worker must download in order to render the service. The platforms, indeed, manage the riders’ access to booking of the working hours (slots), the timing of deliveries, the routes to be followed, and customer payment methods. A rider who does not accept the conditions imposed by the organizational model suffers negative repercussions in regard to job opportunities and access to more profitable working hours.”
By means of a press release, the Milan Public Prosecutor explained more specifically that the alleged autonomy of the riders actually consists solely of the choice of time slots, a choice that in any case is conditioned by the scores assigned to them by the platform and linked to their performance (punctuality, speed, acceptance of orders). As a consequence, this system actually forces riders to accept all orders and to complete the tasks as quickly as possible: not working on some days and in some time slots leads to lower ratings and fewer future opportunities. This made it impossible for such workers to take vacation or sick leave: they were instead forced to work even in the event of an accident, under penalty of loss of work.
Moreover, riders are constantly geolocated during delivery and are contacted by the system if they deviate from the set route or if they are not moving.
In other words, according to the Milan Public Prosecutor, the platforms’ system is based on continuous pressure on the worker, who cannot stop work due to the risk of being expelled or demoted. Hence, the need for reclassification and the application of protections on health and safety at work.
The legislative regulations
On September 3, 2019, Decree-Law No. 101/2019, informally known as the Riders Decree, was issued. Confirmed by Conversion Law No. 128/2019, it came into force on November 22, 2019, and establishes a minimum level of rights for a delivery worker to be granted when entering into a service contract with a platform-based company.
The new law specifies that a delivery worker is self-employed, but the employment regulations must be applied with respect to collaborative relationships that take the form of a predominantly personal, continuous provision of work, the manner of performance of which is established by the client, potentially through digital platforms, with the rules on termination excluded.
Despite the legislature’s attempt to regulate this category of work, the decree left several issues unresolved, and those should be ironed out in close cooperation with the government, trade unions, and the platform-based companies.[1]
Case law orientation
Though case law is currently still limited to a few rulings, it does point to the ways the view of riders and their legal classification have changed and are still changing.
Briefly, below is an analysis of the at-issue judgments.
The first judgment that dealt with the legal framework for delivery people was issued by the Court of Turin on May 7, 2018. The court of first instance, referring both to the provisions of Article 409, No. 3 of the Code of Civil Procedure and to the provisions contained in the Biagi Law (Law No. 30/2003), what is known as the Fornero Law (Article 24 of Decree-Law No. 201/2011), and the Jobs Act (Legislative Decree No. 23/2015), posited that there were elements that made it possible to exclude the configurability of a subordinate employment relationship (e.g., the fact that determination of the workplace and schedule was not imposed unilaterally by the employer and that workers could at any time state that they were unavailable to take a shift).
The second case was decided by the Court of Appeals of Turin with judgment No. 26/2019, which partially overturned the judgment of the court of first instance. This ruling considered the classification of the employment relationship as self-employment to be correct, but granted the workers’ request for application of Article 2 of Legislative Decree No. 81 of June 15, 2015, which states as follows: “as of January 1, 2016, the regulation of the employment relationship shall also apply to employment relationships that take the form of exclusively personal, continuous employment and whose execution methods are organized by the client, including with regard to schedule and workplace.”
Lastly, the judgment of the Italian Supreme Court of January 24, 2020 overruled the ruling of the Court of Appeals of Turin. According to this judgment, when the influence of the “hetero-organization” (intended to indicate the employee being subject to the employer-contractor with regard to “where” and “when” work activity is performed) on how the work is carried out reaches a certain level that, along with personal nature and continuity of performance, shall mean the worker must be considered an employee.
Following this interpretation, with judgment No. 3570 of November 24, 2020, the Court of Palermo confirmed that riders must be considered employees when their service is entirely organized by the algorithm used by the digital platform. The judgment indicates that the case law on the matter—according to which subordinate employment is to be ruled out for riders due to the fact that they can choose whether and when to work—is not acceptable, since it takes into consideration only the beginning of the relationship and fails to analyze the executive phase of the performance.
Deliveroo’s algorithm is discriminatory
Another Italian ruling, this one considered “historic,” was issued by the Court of Bologna on December 31, 2020, against Deliveroo’s app and reputational ranking system, which ranks workers and maps shifts.
The Court of Bologna—the court of first instance—ruled that Deliveroo’s reputational ranking algorithm was unfair to riders as it classified as “unreliable” any worker who booked a work shift and then did not cancel it on time or did not show up for work; “unreliable” riders could book only shifts not booked by “reliable” workers, and thus all “unreliable” workers were systematically missing out on job opportunities.
Specifically, the Bologna court found this mechanism in violation of Italian law prohibiting discrimination against employees/self-employees, because Deliveroo’s rankings did not factor-in the legitimate grounds a rider may have for not cancelling a session or for not showing up to work (e.g., illness or the intention to strike); the algorithm was deemed discriminatory, as it had the potential to limit access to future bookings for riders with legitimate justification.
As a consequence, the Court of Bologna ordered Deliveroo to stop using the algorithm (though Deliveroo claimed this algorithm was no longer in use before the ruling) and to pay EUR 50,000 to the trade unions that filed the claim.
This judgment is considered a major turning point in the quest to obtain union rights and freedoms in the digital world.
Conclusions
In conclusion, we can affirm that the road to gaining rights for gig-economy workers has finally opened up: workers in self-organized business contexts have won important victories and reenergized the entire workers’ movement.
In this regard, it should also be mentioned that Just Eat has announced that beginning in March 2021, it will hire riders under an employment contract and with compensation of 9 euros per hour.
Moreover, attention is being paid to the problem of riders beyond Italian borders. In fact, on February 24, the European Commission (EC) announced that it will hold a public consultation with European social partners on how to improve working conditions for people working through digital labor platforms.
Therefore, exploration in this area seems likely to continue.
[1] For more details on our analysis of these unresolved issues, please see here.
