The Swiss Federal Supreme Court confirms a judgement by the Cantonal Court of Geneva. The case concerns a food delivery service based in the canton of Geneva which delivers food to customers using bicycle couriers. The delivery service had entered a licence agreement with Uber for the use of the UberEats app. Orders are processed via the app. In 2023, the Geneva Cantonal Court found that the delivery service made its staff available to Uber and was therefore subject to the Swiss Federal Act on Employment Services (Arbeitsvermittlungsgesetz). Accordingly, it prohibited the delivery service from carrying out any activity until it had obtained the necessary licence. In its ruling of 5 February 2025 (published on 13 March 2025), the Federal Supreme Court confirmed this assessment. The Federal Supreme Court also considers the requirements for staff leasing to be fulfilled. In doing so, the Federal Supreme Court focused in particular on the fact that the app alone determines which orders the couriers have to carry out, that the app enables real-time monitoring of the time organisation of work and the radius of action of the individual couriers, and that the couriers are required to systematically accept the orders.
In consulting practice, companies engaging in the area of staff leasing requiring a license without being aware of it can be observed time and again. The decision of the Federal Supreme Court sheds light on this topic.
If you have any questions on this or other areas of employment law, please do not hesitate to contact us.
Swiss Federal Supreme Court, Arrêt du 5 février 2025, IIe Cour de droit public, 2C_46/2024
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