The status of couriers under labor law in Germany and neighboring European countries
Buzzwords such as self-determined work scheduling already signal that numerous platforms do not consider their bicycle couriers to be dependent employees, but rather self-employed. The rationale behind it: The couriers would provide their essential work tools - bicycle and smartphone - themselves. They can also refuse orders or be represented by third parties at any time. Following this logic, couriers driving for Uber Eats or Deliveroo, for example, are self-employed in most neighboring European countries on the basis of free service contracts. In Germany, on the other hand, the situation is different: After Deliveroo withdrew from the German market in 2019, Lieferando remains the only "big player" and employs its couriers in the country on the basis of employment contracts. Nevertheless, the platforms regularly cite the aforementioned arguments - owning their own work equipment as well as the right to refuse orders or be represented by third parties - against the employee status of the bicycle couriers they employ. Rightly so?
The greatest obstacle to the assumption of employee status is the general right to be represented by third parties in the performance under the contract that is often granted to couriers. This is because it conflicts with the principle of the highly personal duty to perform codified in § 613 of the German Civil Code (BGB). However, the granting of such a right of representation does not change the employee status if the personal provision of services is the rule and the provision of services by a third party is an exception that does not significantly change the overall picture of the activity (Lower Saxony State Labor Court - 7 Sa 1192/98). Representation by third parties is unlikely to be a serious alternative for most couriers in the highly competitive food delivery business, if only because of the low level of remuneration. Even the use of one's own work equipment, such as a bicycle and smartphone, is not sufficient for the assumption of self-employment. According to the case law of the Federal Labor Court (5 AZR 653/96), the decisive factor is whether the use of one's own work equipment gives the owner the opportunity to shape his or her activity in an essentially free manner. And this is where the app-based allocation and evaluation system comes to the fore.
The app as digital boss
Once logged in, the app with the algorithm in the background determines the employment day. Every step in the process - from receipt of the order to collection of the food and delivery to the customer - is recorded by the app down to the second. During the execution of an order, the app records numerous data, including the average speed of the respective courier and the number of orders delivered per hour. Bonus payments or more lucrative orders - at lunchtime or in the evening, for example - are only paid once a certain number of orders have been completed. The level of control conveyed by the app replaces the work instructions usually given orally or in writing by the employer - in short, the app acts as a digital boss. The coercion mediated by the rating and bonus system means that the courier actually has no realistic choice of when and where he wants to work or how fast or slow he wants to deliver. His activity is determined by others in the sense of the platform. Already in the ‘analog’ age, the Federal Labor Court (5 AZR 312/96) assumed that in the case of simple delivery activities with only limited scope for design, the assignment of a specific delivery area and a time frame is regularly sufficient for the assumption of being bound by instructions. If these standards set by case law are applied, there is no way around qualifying couriers as employees. The Federal Labor Court confirmed this view in its decision of December 1, 2020 (9 AZR 102/20) and, for the first time, assumed that crowd workers - which also includes courier drivers - are employees.
App-based or other digital evaluation systems are taking on an increasingly important role. The example of courier drivers shows that the boundaries between externally determined work and independent activities not bound by instructions can become blurred. Therefore, not only - but especially for - operators of corresponding online platforms such as Lieferando, a clear structuring of the contractual relationship comes to the fore. In particular, treatment as an independent contractor is probably ruled out if the distribution of orders and the amount of remuneration are linked to the type and duration of the work performed.