The present case
The plaintiff is employed by the defendant as a bicycle courier to deliver food and beverages. To do so, he relies on a roadworthy bicycle and a smartphone to access schedules and restaurant as well as customer addresses via app to deliver meals. The employment contract regulates the provision of work materials for the employee’s work. However, the contract does not mention a smartphone or a bicycle.
The judgement of the Federal Labor Court
The BAG confirmed the judgement of the LAG Hesse and ruled that the plaintiff must be provided with a roadworthy bicycle and an appropriate smartphone by the defendant in order to be able to conduct his work as a bicycle courier. Employees only owe the agreed work performance and not the provision of necessary work equipment. According to Sec. 615 cl. 3 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), employers bear the risk that work cannot be performed due to reasons within the sphere of business operations. In addition, according to sec. 618 BGB, employers must procure the devices and equipment needed to perform the services and ensure that they work properly. A contractual regulation deviating from this can be made by the parties of the employment contract. However, such a regulation shall be invalid if it unreasonably disadvantages the other party contrary to the requirements of good faith. In the case of a "rider", this is given when the bicycle courier is not provided with an appropriate smartphone and a roadworthy bicycle and if the use of their own smartphone or bicycle is not compensated separately. This differs from the basic legal idea that employees only owe the performance of work and employers bear the operating risk. The employee may also not be referred to subsequent claims such as reimbursement of expenses.
Outlook on the practice
The delivery service industry is a competitive market and the pressure on costs for the companies involved is enormous. The BAG’s judgement obliges employers to provide bicycles and smartphones as necessary work equipment at their own expense or to pay appropriate financial compensation. This could lead companies to compensate for the increased costs in other ways, such as by reducing the renumeration when concluding new employment contracts. The statutory minimum wage sets a legal limit, which may not be fallen short of in any case. In addition, the obligation to provide necessary work equipment does not apply to companies that use self-employed individuals to deliver food and beverages. This assumes, of course, that couriers are genuinely self-employed and not false self-employed individuals.
Written by Paul Single and Maria Reininghaus.
