Spain: The Nature Of The Contractual Legal Relationship In The Model Of Collaborative Economics, Platform Economics Among Others

The media have recently echoed two judgments handed down by the Social Courts assessing the existence of an employment relationship in those who had been providing their services as self-employed workers. In the following, and in a brief but didactic way, we will analyse the published judgments (Race and Deliveroo cases).

1.- On March 22, 2018, the Social Court No. 37 of Madrid issued its judgment (Court Order No. 971/2017) upholding the ex officio action filed by the General Treasury of Social Security against the Real Automóvil Club de España (RACE), declaring that five tennis instructors who worked in the company's sports facilities had an employment relationship. In this way, a sanction was confirmed for the commission of a very serious infraction for lack of registration in the General Social Security System.

The events that served for the aforementioned qualification of the legal nature of the relationship were:

a.- Their job was to give tennis lessons to the club's students, who were assigned to them by the school director, and in some cases they acted as trainers accompanying them to the competitions. When, due to illness or other reasons, they were unable to attend classes assigned to them, RACE was responsible for placing a substitute without the defendants having to pay the substitute's fee and they received the remuneration even though they had not taught those classes.

b.- In August, no classes were given and no remuneration was paid, nor were the workers with an employment contract, starting the season in September, regardless of whether the groups of students were fully trained or not.

c.- The schedules of the classes they gave were determined by RACE and that the groups formed according to the needs of the students. On any day that the classes they were to teach had no students, the director of the school entrusted them to share another class with a colleague as, despite the non-attendance of students, they charged as if they had taught it. All the classes were given on the RACE courts, with balls, trolleys and other equipment being the property of the RACE.

d.- Each hour of class was paid to them at 19.15 euros by issuing RACE the corresponding invoices that were paid by bank transfer, reverting the benefit of the activity exclusively to RACE and in the event of non-payment by any student the teachers received their remuneration, without them being charged anything in what they received. None of the monitors contracted their classes with the students or the price of the classes and provided their services only to RACE.

2.- More recently, and with much greater impact given the importance of this being one of the first existing pronouncements related to collaborative platforms, the Social Court No. 6 of Valencia issued a judgment on June 1, 2018 (proceedings 633/2017) declaring the inappropriateness of the dismissal of a distributor or "rider" of the company Roofoods Spain, SLU (owner of the virtual platform known as Deliveroo), after declaring the existence of an ordinary employment relationship.  The court decision concludes that the characteristics of an employment contract were given in the case: dependence and requirements.

Dependence is based on the following facts:

a.- The plaintiff worked on the company's instructions and under the conditions unilaterally set by the company. Thus, after joining the company, the application developed and managed by the company had to be downloaded on their mobile phone, receiving authorization and, with it, a user name and a personal password to access it.

b.- The company decided the area in which the employee was to perform his functions. As regards the timetable, although it is true that the applicant offered the company the shifts they wanted to work, it is also true that those shifts had to be within the timetable previously established by the company, and that it was the company that had the final decision on the timetable at which the employee would perform his duties each week, and that this was sometimes reduced to a part of the timetable requested by the employee.

c.- With regards to the delivery service, the company gave specific instructions to the delivery drivers about the way in which this had to be carried out, setting times and rules of behaviour that they had to comply with. At the beginning of each shift, the workers had to go to the place fixed assigned by the company so that they could assign services through the platform. They had to return to the same place each time they finished a shift.

d.- The company had the employee geoloacted at all times, could request explanations at any time about the service, keeping a time control of each delivery,  with the company being the one that decided at all times on the deliveries to be made and the effective allocation of each.

e.- Once a delivery person had been assigned a delivery schedule, he or she needed to find another employee to replace him or her and request the company's authorization to change the shift. On the other hand, the worker was not free, within his own shift, to refuse orders.

f.- Any employee wishing to temporarily stop providing services had to give two weeks' notice to the company.

g.- The worker, even though he provided his own bicycle and mobile phone for the provision of services, did not have a business organisation, the company being the owner of the virtual platform, with the trade name 'Deliveroo', in which the business activity was organised through a computer application (APP).

h.- The possibility of subcontracting was totally residual, with no evidence that the worker made use of it at any time, and it also emerged from reading the contract that the subcontracting of the services agreed with third parties required prior written authorisation from the company.

With regard to the third-party note, it is worth mentioning the aforementioned ruling that:

a.- It was the company that decided the price of the services provided by the employee, which the employee received independently of the company's payment, and after the company had drawn up the corresponding invoice. In addition to tips, he received a fixed remuneration for service rendered (3.38 euros gross) and, until August 2017, a sum for availability which ensured that he received the amount of two orders per hour, and he did not participate in any way in the benefits that the defendant could obtain.

b.- The company established the conditions of the participating restaurants and of the clients to whom it provided its services, the worker did not know which restaurants adhered to the platform at any given time and the identity of the clients who requested its services.

c.- It is the company that sets the price of the service to the customers and charged it through the application, with the employee to collect any amount in cash, except for a tip.

Without prejudice to the fact that one will have to be particularly attentive to forthcoming judicial rulings given, on one hand, the proliferation of this type of service under the protection of the so-called collaborative economy and, on the other, the necessary individualising criteria that must preside over and govern each specific case, the truth is that a first and obligatory conclusion would be to warn that in the future of business contracts with third-party service providers it is not so much the formal contracts signed that matter, nor the appearance of being before a self-employed professional, but the reality of the content of the benefits that, in short, would be the one that could define whether or not we are in the presence of an employment contract.

The question, therefore, is whether the same work-life solution will occur with other well-known companies that also use distributors, drivers, etc.?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions