Flexible working hours, hip employers and the ongoing COVID-19 pandemic are attracting employees to the delivery industries. However, delivery services have been the subject of frequent criticism from an employment law perspective. In an eagerly awaited 10 November 2021 ruling (5 AZR 334/21), the German Federal Labour Court (BAG) confirmed the view of the lower court (Hesse Regional Labour Court, ruling of 12 March 2021 – 14 Sa 306/20) in addressing the question of whether delivery services can require staff to use their own bicycles and smartphones, finding that employers must provide couriers with roadworthy bikes and internet-capable phones.
Bicycle courier demanded bike and smartphone
The plaintiff works for a food delivery service with an employment contract that required him to make food and drink deliveries from restaurants to customers by bicycle. The plaintiff was expected to use his private bicycle for this employment. In addition, since he needed to use an app for deliveries, he was expected to use his own smartphone and data volume for this purpose. No compensation was stipulated for this in the contract. Only a credit of EUR 0.25 per hour of work was available for bicycle repairs at a contractual partner of the employer. This too was arranged as only a general commitment and was not specified in the employment contract.
The employee objected in court to the obligation to use private property to perform his work and demanded that his employer instead provide the equipment.
Work equipment must be provided by the employer
The German Federal Labour Court (BAG) in its ruling of 10 November 2021 – 5 AZR 334/21 also came to the conclusion that the clause requiring the employee to use his own bicycle and smartphone was invalid. As a matter of principle, the employer is required to provide the work equipment. If the employer passes on this obligation to the employee without providing compensation, the employee is placed at an unreasonable disadvantage.
In this case, the employer did grant some compensation for the bicycle's wear and tear, but since this was already required under section 670 German Civil Code (BGB) the measure did not constitute adequate compensation. There was also no separate contractual agreement in this respect. Even if such an agreement existed, a contractual clause that merely repeats the currently applicable legal situation would not provide adequate compensation. Moreover, the employer did not grant any compensation for the employee's use of his cell phone.
Therefore, the judges affirmed an unreasonable disadvantage arising from the agreement in the employment contract that the employee was required to use his own bicycle and personal cell phone. Therefore, during working hours, the rider should be provided with a roadworthy bicycle, an internet-capable cell phone, and the app needed for delivery orders.
Employers should review employment contracts
This ruling is not only relevant for food delivery services, but could also have an impact in other areas, particularly parcel deliveries since drivers are increasingly being asked to deliver goods in their private vehicles. Courts could also rule that without compensation regulations for using private vehicles, drivers may demand access to employer-owned vehicles.
Following the German Federal Labour Court's decision, employers in this sector are urged to review existing employment contracts for invalid clauses and to amend them where necessary.
For more information on this ruling, contact your CMS client partner or CMS expert Paula Wernecke.