By Marco Sideri , Firm: Toffoletto De Luca Tamajo e Soci
On 24 January 2020, the Italian Supreme Court (Corte di Cassazione) confirmed that riders working for the food delivery app service Foodora are self-employed contractors and not employees. At the same time, they are entitled to employees-type protections resulting from Italian legislation (and the nature of the relationship).
What happened before
Platform work and Italy have quite a history: litigation, new laws, debates, industrial negotiations have all featured over the past months in a scenario that is now subject to a Supreme Court decision. Let’s recap on recent platform work developments before looking at the Supreme Court’s reasoning.
Italy has a specific law on platform work
It is currently and gradually being implemented and will enter into full force in November 2020.
On 4 September 2019, the Decree n. 101/2019 was published. The law amended existing legislation on collaborations (article 2 of the so-called ‘Code of employment contracts’ stating that provided their relationship is continuous and mainly personal, self-employed contractors are subject to ‘employment discipline’ if the principal organises ‘the means of execution’ of the service. This provision is very general and much-debated (it was passed in its original form in 2015) and is now the reference law for platform work in Italy. The position was made even clearer by wording added in 2019 that confirms the rule applies in cases where the means of execution are organised ‘through platforms, including digital ones’. The 2019 law also added a number of articles to the Code of employment contracts, specific to riders (delivery of goods in urban areas using bicycles or motor vehicles). This rider-specific section grants specific protections to delivery riders, regardless of contractual arrangements.
Italy had seen three Court decisions on rider-connected litigation before the new Supreme Court ruling
All Italian employment tribunals have deemed riders to be self-employed (rather than employees). There are two first instance decisions (from the Turin and Milan Tribunals) that turn on the fact that riders (with different principals and different contracts in the two cases) could refuse orders without consequences. The Court of Appeal in the Turin case maintained that riders were not employees but, using the provision under article 2 above, stated that ‘employment discipline’ applied to the claimants for the service they performed. The Court’s reasoning was very clearly put: according to the decision, this independent relationship combined with employment discipline constitutes a new category of relationship and, therefore, a new element in Italian employment law (resulting from technical developments and changes in law and life).
Italy tried to find a solution to the many issues that platform work poses through Government action
Aside from the two topics above (law and case law), the debate around platform work and (specifically) food-delivery riders has played a substantial role in Italian public life and industrial relations. A round table at the Ministry of Work with riders, traditional unions, independent unions, employers’ associations and platforms was called and failed to find an understanding. Many local authorities have passed legislation on platform work or facilitated local memorandums on the topic. Nothing has provided a final answer to the many questions around the model, however. The debate was eventually given a new dimension by the new law, although not all questions were answered.
The Supreme Court decision and the state of platform work now
On 24 January 2020, the Italian Supreme Court confirmed the Turin appeal decision and stated that although the food delivery riders in question were self-employed contractors employment discipline applied to them since they were ‘etero-organizzati’, a concept that literally translates to ‘organised from the outside’. It indicates that the service is organised by the principal, justifying employee-like protections in a self-employment context.
Leaving aside the many Italy-specific issues tied to the decision and the legislation involved, the conclusion of the Cassazione Court raises interesting arguments. On one hand, it rejects the Court of Appeal’s conclusion that these collaborations are a new category of relationship. There is no need for such thing, the Supreme Court argues: it is simply a matter of applying existing laws and protections. The decision then quotes the elements that justify its conclusions:
- Riders were supposed to deliver the orders in 30 minutes.
- There was a meeting point at the beginning of each shift with a duty to fill in credentials and start geo tracking.
- There was a duty to go to a specific restaurant, take the food, check it, deliver it and confirm operations.
- There was a duty to deliver the food to the address received through the app and confirm delivery.
With that in mind, the Court concluded that ‘employment discipline’ applied but, it added, this conclusion must be applied to the circumstances of each specific case. Sometimes, some features of the relationship may prove totally incompatible with employment protections. It is a very clear indication of status, combined with a less than clear get-out clause for future cases.
What the future holds
This ruling has received lots of attention from press and professionals. In parallel, the legal reforms (and the ongoing tweaking and changing of wording and rules) has heavily impacted the platform economy oand its management. On the horizon EU law and decisions frpm Employment courts around the world continue to give hints and leads. The Italian operations of platform players will now have to deal with complicated brand-new legislation in addition to complex precedent from the higher courts. Even then, there is hope that a legal balance on a new way of offering and providing work will soon manifest itself and, once and for all (or at least for a time) dispel the noise and confusion.