The Court of Cassation confirms the employment protections to the delivery cyclists ‘hetero-organized’

Case Ref.: Cassazione Civile, sez. lav., 24 gennaio 2020, n. 1663

The Court of Cassation, with judgement no. 1663 filed on 24 January 2020, rejected the appeal brought by a well-known food delivery company against five so-called “riders” and confirmed the decision of the Turin Court of Appeal of 4 February 2019.
According to the Judges, the debate on the placement of delivery cyclists in the field of subordination, autonomy or a tertium generis as indicated by the judgment under appeal “does not make decisive sense (…) because what matters is that for them, in a middle ground with weak borders, the system has expressly ruled the application of the rules on employment“.
And so the Court reminds us that “the legislator, in order to discourage the abuse of contractual models that could lend themselves to this, has chosen certain elements considered symptomatic and suitable to reveal possible phenomena of circumvention of the protections provided for workers. In any case, it then established that when the hetero-organisation, accompanied by the continuity of the service, is so pronounced as to the point of making the worker comparable to an employee, equivalent protections are required and, therefore, the remedy of the full application of the rules applicable to subordinate employees“.
A choice, the Supreme Court declares, “to protect workers evidently considered to be in a condition of economic weakness, operating in a grey area between autonomy and subordination, but considered worthy, however, of uniform protections“.
Therefore, according to the Court, when the characteristics identified by Article 2(1) of Legislative Decree 81/2015 exist, the law imperatively links the application of the rules of subordination, although it is, the Court clarifies, “a norm of regulations” which does not create a new type of case.
That does not mean, however, that there cannot be genuine forms of autonomous workers or that the court cannot establish a relationship of subordination (in the present case it was excluded in both sets of proceedings with a ruling not challenged by the workers).
The Court of Cassation thus confirms the analysis conducted by the Court of Appeal, according to which the rider’s activity in the initial phase is autonomous, because the individual chooses whether or not to work at a given time, but then in the operational phase of the relationship the performance is company-organised (in the present case, delivery was to be made within 30 minutes of collection under payment of penalty, there was an obligation on the rider to go to a given point at the beginning of the shift, to follow the delivery instructions and to confirm the execution of the individual deliveries accepted).