Delivery service must supply bicycle couriers with bike and cell phone

Bicycle delivery drivers (so-called "riders") who deliver food and drinks and receive their orders via a smartphone app are entitled to have their employer provide them with the work equipment that is absolutely necessary for them to carry out their work. This was decided by the Federal Labor Court (BAG) in its ruling of November 10, 2021, for which initially only a press release is available (Federal Labor Court, ruling of November 10, 2021, Case No. 5 AZR 334/21).

Facts

The ruling of the BAG of November 10, 2021 is based on the following facts: The plaintiff works for the defendant as a bicycle supplier. He delivers food and beverages that customers order via the internet from various restaurants. He uses his own bicycle and also his own cell phone for the delivery trips. A corresponding obligation arises from the employment contract of the parties, which is a standard form contract. The defendant grants the bicycle delivery drivers employed by him a “repair” credit of 0.25 euros per hour worked, which can only be redeemed at a company designated by the defendant. In his action, the plaintiff demanded that the defendant must provide him with a roadworthy bicycle and a suitable cell phone for his contractually owed work. He took the position that the defendant was obligated to do so because it was the employer's duty and responsibility to provide the necessary work equipment. From his point of view, this principle was not effectively waived by the general terms and conditions in the employment contract. In contrast, the defendant refers to the content of the concluded employment contract. He claimed that, since the employees working for the company as bicycle suppliers had a bicycle and an Internet-capable cell phone anyway, they would not be burdened, or not significantly burdened, by the use of their own devices. Moreover, the delivery service claimed that any disadvantages would be compensated by the statutory possibility to claim reimbursement of expenses and - with regard to the bicycle - by the repair budget granted by it.

Reasons for decision

After the Regional Labor Court (LAG) of Hesse had already upheld the action, the defendant's appeal was also unsuccessful. The use of the private bicycle and cell phone agreed in the General Terms and Conditions of Contract, according to the 5th Senate, unreasonably disadvantaged the plaintiff within the meaning of Section 307 (2) No. 1 in conjunction with Section 307 (1) Sentence 1 of the German Civil Code (BGB) and is therefore ineffective. The defendant is relieved by this regulation from corresponding acquisition and operating costs, and does not carry the employer-typical risk of having to answer for wearing, decline in value, loss or damage of the essential work equipment. Instead, this risk is wrongfully borne by the plaintiff - a contradiction to the basic legal principle of the employment relationship, according to which the employer must provide the work equipment essential for the performance of the agreed activity and ensure that it is in working order. There was no sufficient compensation for this disadvantage. The possibility existing by law of being able to demand reimbursement of expenses via Section 670 BGB does not constitute adequate compensation. In addition, a clause that merely repeats the legal situation that applies in any case could not provide adequate compensation either. The amount of the “repair credit” made available to the plaintiff was not based on the mileage, but on the only indirectly related working time. The plaintiff could also not freely dispose of the budget, but could only redeem it at a company determined by the employer. Finally, he was also not free to choose the workshop. No financial compensation at all was provided for the use of the cell phone.

Notes for practice

The BAG's decision is not surprising. Pursuant to Section 611a (1) BGB, the plaintiff can demand that the defendant provide him with the work equipment necessary for the agreed activity. He cannot be referred to downstream claims such as reimbursement of expenses or wages for default of acceptance. This should apply equally to all cases in which, as here, no appropriate financial compensation for the use of so-called "own devices" is agreed in the employment contract. The BAG rightly considered the “repair credit” alone to be insufficient - an important signal for an industry in which remuneration is typically only just above the statutory minimum wage anyway.