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Delivering bad news to the deliveryman

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Legal news
calendar 29 January 2023
globus Sweden

A moped courier had been delivering food for a delivery company for some time. After a while, the courier was suspended from the app through which he was given his work shifts. The Swedish Labour Court ruled that the courier was employed by a staffing agency. Therefore, he had not been terminated by the delivery company.

An employee who was temporarily employed as a bicycle courier by a delivery company asked to become a moped courier instead. He then signed a contract with a staffing agency. According to the contract, he would only work for the delivery company.

While working, he was under the supervision and direction of the delivery company. He also wore the company's uniform and had access to the company's premises. After two years of work, he no longer got access to the app through which he had previously received work shifts.

The question in the Labour Court was if the courier was actually employed by the delivery company and if he had been terminated by the delivery company.

Employed but leased

The Labour Court found that the employee had not been employed by the delivery company. Instead, he was employed by the staffing agency with which he had signed an employment contract after asking to become a moped courier. The staffing agency had then assigned the courier to the delivery company.

Since the typical employer functions were shared between the two companies, the usual overall assessment to determine whether someone is an employee or a contractor could not be used in this case.

The court considered the contract between the delivery company and the staffing agency. The contract specifically stated that the staffing agency would keep the responsibility as an employer for the courier during the period he was assigned to the delivery company.

There was no contract between the delivery company and the courier. The courier only had an employment contract with the staffing agency. The fact that the staffing agency was not registered as a staffing agency but as a payroll company did not matter.

IUNO’s opinion

This case confirms that staffing agencies can be employers like any other company. It also clarifies what is relevant when determining who the employer is when a staffing agency is involved. That someone is under the client company’s supervision and direction is not relevant.

IUNO recommends that companies leasing employees have clear and written communication with everyone involved. It is important that the contract specifies who has the main responsibility for assigned employees during the leasing period.

While the case also shows that it is possible to lease the same employee for a long period of time, companies should be aware of the recent changes in Swedish labour law. These changes may give a temporarily assigned worker a right to be offered a permanent position with the company, or to be economically compensated. Therefore, IUNO recommends that companies leasing employees also keep a close record of all assigned workers.

[The Swedish Labour Court’s decision in case 45/22 of 16 November 2022]

An employee who was temporarily employed as a bicycle courier by a delivery company asked to become a moped courier instead. He then signed a contract with a staffing agency. According to the contract, he would only work for the delivery company.

While working, he was under the supervision and direction of the delivery company. He also wore the company's uniform and had access to the company's premises. After two years of work, he no longer got access to the app through which he had previously received work shifts.

The question in the Labour Court was if the courier was actually employed by the delivery company and if he had been terminated by the delivery company.

Employed but leased

The Labour Court found that the employee had not been employed by the delivery company. Instead, he was employed by the staffing agency with which he had signed an employment contract after asking to become a moped courier. The staffing agency had then assigned the courier to the delivery company.

Since the typical employer functions were shared between the two companies, the usual overall assessment to determine whether someone is an employee or a contractor could not be used in this case.

The court considered the contract between the delivery company and the staffing agency. The contract specifically stated that the staffing agency would keep the responsibility as an employer for the courier during the period he was assigned to the delivery company.

There was no contract between the delivery company and the courier. The courier only had an employment contract with the staffing agency. The fact that the staffing agency was not registered as a staffing agency but as a payroll company did not matter.

IUNO’s opinion

This case confirms that staffing agencies can be employers like any other company. It also clarifies what is relevant when determining who the employer is when a staffing agency is involved. That someone is under the client company’s supervision and direction is not relevant.

IUNO recommends that companies leasing employees have clear and written communication with everyone involved. It is important that the contract specifies who has the main responsibility for assigned employees during the leasing period.

While the case also shows that it is possible to lease the same employee for a long period of time, companies should be aware of the recent changes in Swedish labour law. These changes may give a temporarily assigned worker a right to be offered a permanent position with the company, or to be economically compensated. Therefore, IUNO recommends that companies leasing employees also keep a close record of all assigned workers.

[The Swedish Labour Court’s decision in case 45/22 of 16 November 2022]

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Etgen Reitz

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