Couriers who receive their orders via an app and deliver food from restaurants are entitled to have their employer provide them with the equipment necessary to carry out their work. This includes an internet-enabled mobile phone (smartphone) with data volume and a roadworthy bicycle.
Federal Labour Court, judgment of 10 November 2021 – 5 AZR 334/21
Background
The defendant operates a delivery service with its own app which customers can use to order food from restaurants. The plaintiff is employed by the defendant as a courier or “rider”, delivering food and drinks from restaurants to customers. The defendant provides the plaintiff with the addresses of customers and restaurants via the app and processes the payments. The plaintiff is contractually obliged to use his own mobile phone and his own bicycle to carry out his work. In return for using his own bicycle, the defendant granted the plaintiff repair credit of EUR 0.25 per hour worked, which the plaintiff could use in a workshop designated by the defendant.
With his lawsuit, the plaintiff demanded that the defendant provide him with a smartphone, including data volume, and a roadworthy bicycle to be used exclusively for his work as a rider. The action was dismissed by the Labour Court, but subsequently upheld by the Higher Labour Court. The Higher Labour Court noted that the required app usually consumed up to 2 GB of data volume per month. After the appeal hearing, the defendant provided the plaintiff with an internet-enabled mobile phone for his work as works council chairman and stated during the proceedings before the Federal Labour Court that he could also use this phone for his work as a rider for as long as he served on the works council. During these proceedings, the defendant continued to argue that the plaintiff’s claim should be dismissed. The plaintiff demanded that he be provided with a roadworthy bicycle for his work as a rider. He also asked the Court to order the defendant to provide him with an internet-enabled mobile device with a data usage contract with 2 GB of data volume per month that he could likewise use specifically when working as a rider.
Federal Labour Court’s decision
The Federal Labour Court also ruled in favour of the plaintiff.
It held that the action was admissible because the plaintiff had only received the mobile phone due to his position on the works council and for the duration of such position only. There was therefore a legal interest in clarifying the question of whether the defendant had to provide him with an appropriate mobile phone specifically for his work as a rider.
The Court also found that the action had merit, arguing that the claim under section 611a(1) German Civil Code included the equipment suitable and essential for the agreed work. It held that the employee had a legitimate interest in the employer providing the equipment necessary for the work because the employer organised the work processes and assigned the work to be carried out by the employee by way of its right to issue instructions (section 106 German Trade Regulation Act). The employer was therefore also responsible for ensuring that the employee had the equipment necessary to carry out the contractually agreed work. In the case in question, this included a smartphone with 2 GB of data volume and a roadworthy bicycle. The Court pointed out that the employer could not refer the employee to subsequent claims for the reimbursement of expenses, either.
The Court went on to note that the contractual stipulation that the plaintiff had to use his own smartphone was unreasonably disadvantageous within the meaning of section 307(2), no. 1 in conjunction with (1), sentence 1 German Civil Code and was therefore invalid. The basic idea behind section 611a(1) German Civil Code was that the employer had to provide the employee with essential work equipment. General terms and conditions that obliged employees to provide the equipment necessary to carry out the agreed work deviated from this basic idea.
The Court also stated that although a clause that was unreasonably disadvantageous in and of itself could be compensated by way of another, significant advantage so that the agreement could on balance be regarded as valid, appropriate compensation for the plaintiff’s use of his own bicycle and mobile phone was neither agreed nor otherwise given in the case in question. A claim for the reimbursement of expenses by way of the analogous application of section 670 German Civil Code already reflected the applicable legal situation and did not give the plaintiff any additional advantage. The repair credit granted for the bicycle did not constitute appropriate compensation, the Court pointed out, as the plaintiff could not freely dispose of the money, nor was he free to choose which repair shop to use. In addition, the amount of the repair credit was not based on the mileage relevant for wear and tear.
Gleiss Lutz comments
The fact that employers must provide their employees with equipment that is suitable and essential for the agreed work is nothing new. The Court’s conclusion that employers have some leeway when selecting the necessary work equipment (in this case a suitable smartphone and the necessary data volume, for example) is however welcome.
The Federal Labour Court’s view that employees can be adequately compensated in their employment contract for having to provide essential work equipment themselves is an interesting development. This is the first time that the Federal Labour Court has made it clear that a statutory claim for the reimbursement of expenses (in this case, by way of analogous application of section 670 German Civil Code) does not constitute reasonable compensation to employees when employers deviate from statutory provisions on costs. Provision must instead be made for this in the employee’s contract. In order to ensure appropriate compensation, the employee must, in particular, be able to freely dispose of the compensation payment and this payment must be directly related to the disadvantage suffered as a result of the employee having to use his or her own work equipment. Beyond platform work, employers would therefore probably be well advised to compensate their employees for using private equipment (such as a laptop or internet connection), for example when working from home or carrying out mobile work, by paying them an appropriate (lump) sum specified in their employment contracts.
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