The Case of the Spanish Riders

0:05 [SPEAKER_00]: Hello and welcome to the fifth episode of the Working Life podcast brought by the Institute of Employment Rights. [SPEAKER_00]: I'm Donya Jeyabalasingham and I'm the Communications Officer with the Institute and today I'm really glad to be joined by Dr Antonio Garcia Munoz, who is a lecturer in Labour Law at the University of Glasgow with research focusing on collective labour law and industrial relations.

0:28 [SPEAKER_00]: Recently, Antonio wrote a really fascinating blog post for the Institute on a decision made by Uber in Spain earlier this year to classify their workers as employees. [SPEAKER_00]: And hopefully that also means accepting their role and responsibilities as an employer under Spanish labour law.

0:48 [SPEAKER_00]: We're very grateful to have you here today to talk about this. [SPEAKER_00]: If you don't mind if we could start with a broader approach to what happened in January, what does this change in this changing classification of workers mean for Uber and also for riders? [SPEAKER_01]: So, first of all, thank you very much for having me here.

1:08 [SPEAKER_01]: I am very happy to be here today. [SPEAKER_01]: And yeah, in February this year, Uber Eats Spain announced that they will switch their business model and they will move towards an employee only drivers model, which will make Uber just the same as the other big companies employing drivers in the Spain because.

1:32 [SPEAKER_01]: very recently all of them have moved towards this model of employees. [SPEAKER_01]: For the workers, this is an very important change. [SPEAKER_01]: The consequences are clear. [SPEAKER_01]: They will become protected by labour law rights [SPEAKER_01]: and also social security rights and protections.

1:51 [SPEAKER_01]: So this is very important for them. [SPEAKER_01]: And for the companies, they will need to operate now on a new distinct business model, but all of them will be on equal footing. [SPEAKER_01]: So I don't know in terms of number of people employed or profitability of their business, how this will affect them in the future, but it's just that they have to comply with the rules.

2:15 [SPEAKER_00]: Yes, well absolutely. These platform companies emerged around ten years ago across the continent really. You see a pattern of using misclassification of workers to circumvent labour rights. How key has this yes, decision been to the business models that platform and gig-economy businesses run on?

2:39 [SPEAKER_01]: Well, the platforms when they came, they operated using self-employed workers. [SPEAKER_01]: This was their business model and this was probably the condition of their profitability and expansion at the very beginning when they started business. [SPEAKER_01]: and they presented themselves as technological companies during the mediation service and so on.

3:02 [SPEAKER_01]: We know we all know the story. [SPEAKER_01]: I think for them, the area was, yeah, to avoid responsibilities and risks under labor law. [SPEAKER_01]: And that was there, let's say, idea of how to do business. [SPEAKER_01]: It was new in Spain, probably was not new in some of the countries, but it was not so new.

3:25 [SPEAKER_01]: This is something not many people know, but in the 80s, and we already had cases very similar to these ones for messages, and people doing deliveries on their motorcycles in the cities. [SPEAKER_01]: Of course, we didn't have the apps back then, but it was a similar situation. [SPEAKER_01]: have insisted in this model and they have put forward all kind of arguments about what was different in this relationship and the independence and autonomy of the writers to choose their hours and so on their shifts.

4:05 [SPEAKER_01]: But, well, I think the courts and scholars and now also the legislators, they have some that this was not very close to the material reality of these persons. [SPEAKER_01]: So, I think it put at risk. [SPEAKER_01]: the model of classification of workers in Spain based on the criteria we had to decide when one person was a work and employee or a self employed.

4:33 [SPEAKER_00]: So in your blog piece, the Institute, you do describe this or begin to describe it as an issue that is to do with classification. [SPEAKER_00]: but it does go beyond that a bit because you describe multiple attempts to address this issue primary in three separate ways. [SPEAKER_00]: The first came with the as with the flavour inspectorate.

4:59 [SPEAKER_00]: So I thought we could start there. [SPEAKER_00]: You begin in around 2017 with a declaration [SPEAKER_00]: Could you maybe discuss the inspector whether it was equipped in the right way to deal with these companies and to probably challenge this classification? [SPEAKER_01]: Yeah. [SPEAKER_01]: Well, the labor inspector has done a great job on this issue.

5:29 [SPEAKER_01]: I have to explain that the labor inspector is coordinated with the Ministry of Labor. [SPEAKER_01]: And there are the Ministry of Labor, good-forward priority and a strategy on how to, I mean, what is most important for the, for a period of time, and the labor inspector focuses on this and platform work.

5:50 [SPEAKER_01]: was one of these priorities. [SPEAKER_01]: It was before platform workers, we already had a problem of false self-employed. [SPEAKER_01]: So it has been a topic that the labor inspector has been dealing with for a long time. [SPEAKER_01]: It's not completely new. [SPEAKER_01]: But the labor inspector in Valencia, the issue of report is more than 100 pages, [SPEAKER_01]: they assess the material reality of the relationships of the drivers, they made interviews, they went to the working places and they realized these persons, the reality does not correspond with self-employed persons and they therefore, they, [SPEAKER_01]: order I mean the company to reclassify them because basically they made the company to pay social security contributions because it was part of the problem that this workers are not covered and the social security lost and yeah and was this a singular instance or did it trigger

6:56 [SPEAKER_01]: No, this was a systematic strategy of the labor inspector Valencia was the first case, but was very soon followed by other cases in other cities in Spain that I got to Barcelona. [SPEAKER_01]: And it was strategy that developed over time. [SPEAKER_01]: And when finally global decided to change its model earlier in 2025, they owe the Social Security more than 200 million euros in the transactions.

7:27 [SPEAKER_01]: And go back to that. [SPEAKER_00]: How effective were economic sanctions in terms of achieving compliance from these large platform companies? [SPEAKER_01]: Not very much. [SPEAKER_01]: To be honest, the best example is Global Global just kept operating under their model. [SPEAKER_01]: And even if over the years they accumulated this 200 million sanction, [SPEAKER_01]: they were still insisting on their model, so it was not very effective as a deterrent, let's say.

8:01 [SPEAKER_01]: Also, a very recent judgment that I couldn't talk about in the blog, but it comes from that administrative jurisdiction has decided that they don't need to pay the sanctions because [SPEAKER_01]: for the sanctions to be to produce all defects. [SPEAKER_01]: There is an element of guilty and the judge found that the companies were not guilty because they really believed that they were in self-employed.

8:32 [SPEAKER_01]: So the economic sanction also took more than eight years for the sanctions to become effective. [SPEAKER_01]: So it has not been very effective. [SPEAKER_00]: So that did sort of mean that they needed to be additional interventions. [SPEAKER_00]: Mainly that the significant challenge that came after this was from the judiciary.

8:52 [SPEAKER_00]: I was only if you could talk a little bit about how the case went from our first first appearance to appeals and so on up to the Supreme Court. [SPEAKER_01]: Yeah, like in many other European countries at the beginning, there was a lot of uncertainty. [SPEAKER_01]: The courts, they reached some contradictory solutions.

9:10 [SPEAKER_01]: All the most courts found riders to be employees. [SPEAKER_01]: Some of the courts found them to be self-employed. [SPEAKER_01]: So there was a little bit of legal uncertainty. [SPEAKER_01]: here. [SPEAKER_01]: And this was what triggered the intervention of the Supreme Court. [SPEAKER_01]: And the Supreme Court, in a case in 2020, found that an employee was arrived, there was to be qualified as an employee.

9:42 [SPEAKER_01]: And deciding criteria where that dispersion was lacking its own organization was not in the marketing in its own. [SPEAKER_01]: And it was in a very broad sense integrated in the organization of another company. [SPEAKER_01]: It's also interesting that the courts in Spain have challenged the self-image of these companies as technological companies, because finally what they are doing is not developing new technologies or anything, but simply doing a business delivery food delivery business.

10:19 [SPEAKER_01]: So this is also interesting. [SPEAKER_01]: I find. [SPEAKER_00]: So on that point of how these companies identify as technology or just an interface for work for people to use and how did the court go about saying that actually they were through to the very service providers as opposed to technology companies.

10:39 [SPEAKER_01]: To begin with, it's funny, but the labor inspector already pointed this out, and their social aim is with delivery, just to start with, and then it's true that they do something new and is that they use a new technological development like the app to put in contact offer and demand, but it's not, this is this is not what I mean, the activity in itself is not.

11:11 [SPEAKER_01]: You cannot detach it from the food delivery, right? [SPEAKER_01]: This is their business. [SPEAKER_01]: What they do is they are putting contacts clients and customers and they deliver food. [SPEAKER_01]: So the courts were arguing that [SPEAKER_01]: Without the riders, this activity could not be achieved and the riders were key for this activity and they were within the organization.

11:37 [SPEAKER_01]: They were part of the organization. [SPEAKER_01]: They were not external clients or external self-employed persons. [SPEAKER_00]: Yes, I see. [SPEAKER_00]: And to what extent did that judgment sort of settle the issue at least legally? [SPEAKER_00]: Was this you can go clear that they were essential and integrated and therefore employees?

12:00 [SPEAKER_01]: It should have been very clear to everyone. [SPEAKER_01]: That was the case, but the company is in particular a little [SPEAKER_01]: they resisted and they would make the argument that this was just one judgment sentence and also they crafted new contracts and they would say, okay, circumstances have changed because the contracts are now different.

12:25 [SPEAKER_01]: this findings in this judgment don't apply to the new contracts and so on and so forth. [SPEAKER_01]: So there was kind of clarity from a legal point of view, but still companies they tried to made their argument that the decision of the Supreme Court was not at the end of their business model, [SPEAKER_00]: Following the Supreme Court judgment, the different platforms responded in different ways, at least up until the legislature stepped in with the riders law.

12:57 [SPEAKER_00]: As one, if you could talk a little bit about the different responses, especially the platforms that to some degree just sort of rejected the judgment from the highest court. [SPEAKER_01]: Yeah, different platforms reacted differently to the judgment. [SPEAKER_01]: There was, there is one company, just it, that they decided to switch to a model of employee only, but they already were on this model before their Supreme Court judgment to some extent.

13:26 [SPEAKER_01]: And then one other company that is a UK company delivered, who they decided to, to abandon the Spanish market. [SPEAKER_01]: And the other two companies glow one over it. [SPEAKER_01]: They were the two companies that decided to resist, let's say, to this regard, the Supreme Court judgment and kind of continue with their model of self-employed.

13:50 [SPEAKER_01]: It was a little bit more sophisticated than this because they developed an hybrid model of employees and self-employed but basically most drivers were still self-employed in these two companies. [SPEAKER_00]: So as I previously mentioned, there was a third attempt to intervention in this time.

14:06 [SPEAKER_00]: It was from the Legislature and this was the introduction in 2021 of the riders law, which perhaps you can talk about. [SPEAKER_00]: Talk a little bit about it. [SPEAKER_00]: It was explicitly made to address this lack of compliance that came following the Supreme Court judgment. [SPEAKER_01]: Yeah, if you read the introduction of the law, the explanatory remarks of the law, it's quite telling because it says explicitly that there are new technological developments and new models of employment that are circumventing level protections of some groups of workers and we have to address this and then the law that has only two articles.

14:50 [SPEAKER_01]: establish a reinforced perception of employment status for drivers working for food delivery apps. [SPEAKER_01]: So it's really tailor-made to tackle these companies. [SPEAKER_01]: But the interesting thing about the law is that it is the result of social dialogue. [SPEAKER_01]: So there was an agreement between the Spanish main Spanish employers association and trade unions and the government on the law, on the [SPEAKER_01]: And it was not an easy, it was not easy to reach, was more than 10 months of negotiations.

15:27 [SPEAKER_01]: And of course, the employer side was divided. [SPEAKER_01]: Although, [SPEAKER_01]: The organization finally agreed. [SPEAKER_01]: I mean, the employer's run is agreed on this. [SPEAKER_01]: The platforms, some of them, like Global, they withdraw from the employer's organization in this agreement.

15:46 [SPEAKER_01]: They said employers organizations, the organization was not taking into account their interest. [SPEAKER_01]: And they attempt to create a new employer's organization for them. [SPEAKER_01]: that didn't fly and the grounds on which employers organization agreed to the new law were fair competition because you know there was the president in Spain of the 80s and the 90s cases [SPEAKER_01]: And also there was already a company that was complaining with the law, as I just said, so the idea was that, okay, we need a level playing field, so we need to agree on something and we have the Supreme Court case, that anyway, say something.

16:31 [SPEAKER_00]: So once the rider's law has been adopted in 2021, there's still an ongoing issue of compliance, even following that. [SPEAKER_00]: And we will revisit how that's addressed by a dressed in Spain. [SPEAKER_00]: I was interested in what your thoughts are in terms of enforcement at this point, because you see in the regulatory body trying to dress it and then lead it to a chair and also the judiciary.

17:00 [SPEAKER_00]: everything seems and even where the Employment Employee Association is somewhat in cooperation over the riders law. [SPEAKER_00]: There was this ongoing issue and I was wondering should be interested in commenting on enforcement in that and that's good. [SPEAKER_01]: Yeah, I think I like to think about enforcement as a very complex machinery that were interrelated tools and strategies and I think each of them is important.

17:30 [SPEAKER_01]: And the problem as we know very well with labor law enforcement is that is difficult. [SPEAKER_01]: It's difficult, it's costly, and it's easy for the companies to just not to comply with the law many times. [SPEAKER_01]: If enforcement depends on courts, then you need someone that goes to court and many times workers don't go to court.

17:53 [SPEAKER_01]: If enforcement is limited to an economic sanction, then the companies can make a rational. [SPEAKER_01]: calculation and decide whether this is worth or not and they may decide to go on. [SPEAKER_01]: with their business model as you know very well in the UK, in recent cases. [SPEAKER_01]: So I think the intervention of criminal law unless, although it's so solid with extreme, it's just part of the machinery to keep it serious, to keep it like working.

18:27 [SPEAKER_01]: So if you don't comply when you have the opportunity, if you don't comply, [SPEAKER_01]: with economic sanctions and so on and these are decisions, then the possibility that criminal law can intervene, I think it's the last resort the state has to make its own rules credible. [SPEAKER_00]: Yes, I see what you mean.

18:53 [SPEAKER_00]: I was quite interested in this idea used touched on, which is that there's the initial issue of a lack of enforcement means that the protections, the rules you put in place aren't executed as you want them to be, but it also has a secondary eroding factor on this state and the laws. [SPEAKER_00]: authority to make rules and to expect them to be sort of followed in a way, especially the protective ones.

19:23 [SPEAKER_00]: I suppose I'm interested in what the constitutional angle and that would be from your perspective. [SPEAKER_01]: Yes, I am very interested in this problem now, because [SPEAKER_01]: At some point, it became explicit, and the Ministry of Labor, as Jolanda Diaz, he said publicly. [SPEAKER_01]: It's not anymore about employment status.

19:43 [SPEAKER_01]: It's not anymore only about the riders. [SPEAKER_01]: It is about the rule of law. [SPEAKER_01]: It is about the rules in the democratic society. [SPEAKER_01]: So I think, from a constitutional point of view, you always have this tension between freedom of enterprise and the right to work.

20:03 [SPEAKER_01]: I think if there is a tension because there must be probably a balance, but what we were seeing in the example of the platforms and the attitude of companies like law was that the balance was totally unbalanced, like the workers' rights and the democratic aspect [SPEAKER_01]: week on the week side, let's say of this balance.

20:34 [SPEAKER_01]: That's why I think the Ministry of Labor was so so personally almost interested in going to the end on this on this. [SPEAKER_01]: Also because you know the attitude of global was openly challenging. [SPEAKER_01]: the CEO of Global was openly kind of challenging the law. [SPEAKER_01]: This didn't help, probably, there's strategy in midterm.

21:01 [SPEAKER_01]: But I think there was something about companies being able not to comply if they don't want, if they have the financial means to do it. [SPEAKER_00]: Well, it has very reminiscent in the UK of the piano, a very scandal where there was that open knitting of the calculus being made really about compliance and cost of non-compliance.

21:30 [SPEAKER_00]: So, you've touched on this already, but eventually what does end up happening is a modification to the criminal code, which ended up being quite a powerful change to the enforcement of the law. [SPEAKER_00]: As one, if you'd be able to explain what happens, [SPEAKER_01]: Well, the modification of the criminal law was, you know, the government took advantage of the fact that there was a process of modification on going and they modified also article 311 article 30011 is a is a n article with with the labor law content is the main article in our criminal court about labor law.

22:18 [SPEAKER_01]: When some conditions are met, there has been a lot for it in about this article. [SPEAKER_01]: What is new is that now there is a second paragraph to this article that says, [SPEAKER_01]: work as in an illegal situation, under a contractal agreement is different to the relation of employment, to the control of employment, it's going to be penalized as well.

22:59 [SPEAKER_01]: This is Taylor made probably to tackle the problem we had with platforms and riders in Spain. [SPEAKER_01]: Of course, it will also eventually protect the workers that are in a similar situation, but the idea is to punish the resistant took to comply with the level loads. [SPEAKER_01]: And for some end of label law, it's primarily solved with label law rules, but [SPEAKER_01]: As a last resort, when enforcement is not effective, criminal law needs to intervene.

23:48 [SPEAKER_01]: And that's what the legislator has attempt to do. [SPEAKER_01]: The fact that it has been very effective because at the very moment that the Z of Global was called to the Clare in Court, [SPEAKER_01]: the day before the company announced publicly that they will change their business model and and change to an employee-only model.

24:13 [SPEAKER_01]: And when Uber has announced that they will also change their model, I have to say they were also under investigation. [SPEAKER_01]: So probably they were afraid of the [SPEAKER_00]: and have there been any cases that have been concluded? [SPEAKER_01]: No, it's still ongoing. [SPEAKER_00]: Yeah, so it'll be interesting.

24:35 [SPEAKER_00]: See what it was. [SPEAKER_00]: Yeah, definitely. [SPEAKER_00]: Yeah. [SPEAKER_00]: Well, I think that's probably quite a good place to round that off on. [SPEAKER_00]: Thank you very much for talking to us about it's very interesting. [SPEAKER_00]: Thank you. [SPEAKER_00]: Thank you. [SPEAKER_00]: And I hope everyone continues to read your blogs and your own work at the University of Glasgow.

24:55 [SPEAKER_00]: And if you enjoyed that episode, please do subscribe to our podcast. [SPEAKER_00]: Thank you very much. [SPEAKER_00]: Thank you.