Judgment of the Federal Labour Court of 10 November 2021 in Case No. 5 AZR 334/21
You see them everywhere, tearing through the city on their bikes while glancing at their smartphones: delivery cyclists delivering an evening meal or the weekly shopping in huge backpacks. The Federal Labour Court (Bundesarbeitsgericht, BAG) has now held that employers must make available to the delivery riders the work tools necessary for the riders to deliver delicacies such as pizza or burgers.
Facts of the case
The case was brought against an employer of bike courier riders who deliver food and drinks from various restaurants. The employment contracts took the form of general terms and conditions and required the cyclists to provide their own bicycle and use their own mobile phone. For each hour of work, the cyclists received a EUR 0.25 credit that could be used for bike repairs at specific repair shops. An employee brought a claim before the court and demanded that the employer make available a roadworthy bicycle and a suitable smartphone for his contractually agreed activities. He argued that it was the responsibility of the employer to provide the necessary tools. The employer responded that its employees already had their own bicycle and mobile telephone anyway. Any disadvantage from using their own was compensated by the statutory option to reimburse expenses and to provide credit for repairs.
The BAG decided in favour of the employee: the requirement for the cyclist to use his own bike and smartphone unreasonably disadvantaged the Claimant in contravention of § 307 (2) No. 1 and the first sentence of § 307 (1) of the Civil Code (Bürgerliches Gesetzbuch, BGB) and is therefore ineffective. The contractual provisions in question meant that the employer did not have to pay the procurement and operational costs to the detriment of the employee, nor bear the cost risk associated with wear and tear, loss, or damage to the essential work tools. This was contrary to one of the basic concepts of the working relationship, which requires the employer to provide the essential tools for the performance of the agreed activities and to ensure that the tools functioned effectively. In the Court’s view, the resulting disadvantage was also not sufficiently compensated in the present case. The reimbursement of expenses, as required under statute, does not constitute appropriate compensation as there was no contractual provision. In addition, the employee did not have free access to the budget for repairs. The employee therefore has a right, in accordance with § 611a (1) of the BGB, to be provided with a bicycle and a smartphone that are suitable for the performance of the agreed activities.
Consequences for practice
The judgment is designed to ensure that the minimum wage levels imposed by law cannot be undermined. Employees, especially those who are only paid close to the minimum wage for their work, cannot be asked to make further sacrifices with their assets to be able to perform their work. The employer must make the necessary tools available to the employee.
The judgment clarifies that employers cannot escape their obligations to bear the procurement and operational costs for necessary work tools. However, the Court indicated that it would be possible to pay appropriate financial compensation instead of providing the tools. This gives employers sufficient contractual leeway to find an appropriate solution.