Top Takeaways for Employers from the Latest Decision on German Bike Delivery Services

During the Corona pandemic, bike delivery services experienced a boom in Germany. One provider has been newly listed on the major German stock index DAX, another one is the fastest-growing German unicorn of all times. Major international players are preparing to enter the market – or already have.

From an employment law perspective, bike delivery services have been under scrutiny. The German Federal Labor Court has now clarified one of the many issues relating to bike delivery services. In its ruling of November 10, 2021 (5 AZR 334/21), the Court addressed the question of whether bike delivery services can ask their drivers to use their own bikes and smartphones.

What Was the Case About?

The driver's employment contract requires the driver to pick up food and beverages from restaurants and bring them to customers by bike. For this purpose, he was expected to use his private, roadworthy bike. In addition, he must use an app for the delivery. He was also required to use his own smartphone, including data volume. Compensation for this was not provided for in the employment contract. Only a credit of EUR 0.25 could be accessed by him per hour worked for bike repairs at a contractual partner of the employer. This, too, was only regulated in a general agreement, not in the employment contract.

The driver demanded that the employer provide him with a bike and a smartphone.

The Federal Labor Court concluded that the clause requiring the employees to use their own bikes and smartphones was invalid.

What Were the Reasons for the Decision?

The Court gave the following reasons for the decision:

• Employers are generally obliged by law to provide the necessary work equipment. If the employer shifts his obligation to the employee without appropriate compensation, this leads to an unreasonable disadvantage of the employee.
• However, the possibility of being able to demand reimbursement of expenses for the wear and tear of the bike does not constitute appropriate compensation, as this is already provided for by law.
• Moreover, the employer did not grant any compensation for the use of the smartphone and the data volume at all.

Top Takeaways

1. This decision is not only relevant for bike delivery services but could also have an impact in other business areas. All employers are therefore well advised to add appropriate compensation agreements to their employment contracts or to provide appropriate equipment.
2. Other employers also frequently make use of equipment provided by the employee, not least in case of remote work or working from home. Here, too, it should be checked whether there is sufficient compensation provided in employment contracts or home office agreements.
3. Ultimately, disputes like this may result in reputational issues for employers.

Please feel free to reach out to our Employment Team in Germany or your usual contact at Orrick to find out more or if you need any help.