Are gig workers employees? What rights do they have?
Keeta delivery workers’ strike
On 10 May 2025 food delivery workers working for Keeta, one of the only two food delivery platforms in Hong Kong, went on strike in Tsuen Wan and Mei Foo over pay reduction and no peak hour subsidies.1 This re-ignited the debate over the protection of gig workers in Hong Kong.
Our partner, Mr. Michael Szeto, joined a lawmaker (also the chairman of the second largest trade union in Hong Kong) and an academic recently at RTHK Radio 3’s programme “Backchat” for a discussion on food delivery workers’ rights.2
Gig workers’ rights (or the lack of it)
The strike has once again highlighted employment law issues surrounding gig workers’ rights (or the lack of it) in Hong Kong. This debate is not new. In mid-November 2021 during the COVID pandemic, some 300 Foodpanda delivery workers went on a 2-day strike and sparked a public debate on whether Hong Kong needs new laws to protect gig workers. In November 2021 edition of our newsletter: “Does Hong Kong need new laws to protect gig workers?”, we concluded that sooner or later, Hong Kong will need to review its labour legislations as gig economy continues to bloom. Please click here for our article.
In Hong Kong, one may perform work for another either as an “independent contractor” (or “self-employed”) or an “employee”. Whether an individual is an independent contractor or an employee has a significant impact on his or her entitlements to statutory benefits and duties imposed on the employer. This undoubtedly has a bearing on the financial planning, risk management and business variability of the clients (who hire independent contractors under service contracts) or employers (who hire employees under employment contracts), as the case may be.
Only employees are entitled to the benefits and protections under the Employment Ordinance (Cap. 57) (such as paid annual leave, statutory holiday pay, sickness allowance, severance payment or long service payment), which vary based on the length of the employee’s continuous contract of employment (i.e. employed continuously by the same employer for 4 weeks or more with at least 18 hours worked in each week). Only employees will be entitled to other statutory protections such as the minimum wage under the Minimum Wage Ordinance (Cap. 608) and compensation arising from work injuries under the Employee’s Compensation Ordinance (Cap. 282). These benefits and protections are not available to independent contractors, who are their own “boss”.
The Zeek case
Whilst companies invariably enter into service contracts with gig workers, this is not conclusive evidence that gig workers are “independent contractors”. In Cheung Ka Yan and ors v Kin Shun Information Technology (Hong Kong) Ltd & Ors (unreported, LBTC 3170/2022, 29 May 2023), the Labour Tribunal ruled that six gig worker couriers who worked for Zeek, a food and parcel delivery platform, were “employees” even though they had entered into service contracts to work for Zeek as “independent contractors”.
The Labour Tribunal has exclusive jurisdiction to determine claims arising from breach of employment contracts and Employment Ordinance. The gig workers claimed against Zeek for outstanding wages, payment in lieu of notice, unpaid statutory holiday pay and annual leave pay. Their claims would only be successful if the Tribunal ruled that they were “employees”. However, if the gig workers were not “employees”, they could not even bring their claims at the Labour Tribunal. Hence, the first question that the Tribunal had to determine was whether the gig workers were employees.
There is no hard and fast rule to classify whether a gig worker is an “employee” or an “independent contractor”. In the leading case of Poon Chau Nam v Yim Siu Cheung [2007] 1 HKLRD 951, the Court of Final Appeal ruled that the modern approach of the question of whether one person works for another as an employee is to examine all the features of their relationship against the background of the indicia developed in the case law with a view to deciding whether, as a matter of overall impression, the relationship was one of employment. Applying the legal principles in Poon Chau Nam, the Tribunal held that the claimants were employees.
Please click here for July 2023 edition of our newsletter: “First Hong Kong Labour Tribunal decision to rule gig worker couriers are employees” where we discussed the Zeek case.
The Deliveroo case
Whilst the Labour Tribunal ruled in favour of the gig workers in the Zeek case, in Gurung, Sanjayaman v Deliveroo Hong Kong Limited [2024] HKDC 1932, the District Court ruled that a former gig worker rider of Deliveroo was not an employee but an independent contractor.
In the Deliveroo case, the gig worker rider claimed to have sustained injuries during one of his deliveries and applied for compensation under the Employees’ Compensation Ordinance. Section 5(1) imposes liability on the employer to pay compensation “if in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee” (emphasis added). Deliveroo, applied to strike out the gig rider’s employees’ compensation application, on the basis that the rider was not an employee and received the benefit of a voluntary insurance policy provided by Deliveroo specifically for the gig worker riders on the basis that the riders were not employees. The District Court applied the principles in Poon Chau Nam and ruled that there was no employment relationship and struck out the gig rider’s case in favour of Deliveroo.
Please click here for January 2023 edition of our newsletter: “Is Deliveroo gig worker rider an employee or self-employed?” where we discussed the Deliveroo case.
The root problem
From a legal perspective, the root problem is how to classify gig workers – are they “independent contractors” or “employees”? Clients (or platforms) may have intended to hire gig workers as independent contractors and in their service contracts, the parties may have expressly agreed that the gig worker is an “independent contractor” and without any reference to an employment relationship in the written contract. But when disputes arise, gig workers may argue that they are “employees” and not independent contractors. Parties will have to resort to the Labour Tribunal or courts to determine whether their relationship is one of employment or not.
As we can see from the Zeek case and the Deliveroo case, there is no hard and fast rule. In the Decision of the Deliveroo case, the District Court acknowledged the facts of the Zeek case were distinguishable and noted that:
“There is no industry standard or usual structure of the trade which can provide substantial guidance, as each case must turn on its own facts.” (emphasis added)
This can be a time consuming exercise for the Labour Tribunal (or the court) and a costly exercise for the parties. Applying the principles in Poon Chau Nam, a myriad of non-exhaustive factors and indicia of employment will likely be taken into account by the Tribunal (or the court) to determine whether there is an employment relationship between the parties, including:
1. the degree of control over procedures, working time and method exercised by client over the gig worker?
2. who provided the equipment for performing the services?
3. whether the gig worker can hire his own helpers for performing the services?
4. whether the gig worker can perform his own business?
5. what is the degree of financial risks borne by the parties?
6. whether and how far the gig worker can profit from sound management in performing his task?
7. whether the gig worker has assumed investment and management responsibility?
8. whether the gig worker is viewed or can be identified as part of the client’s business?
9. what are the parties’ own views of their relationship?
10. what is the incidence of tax and insurance?
11. what is the structure of the trade and arrangements within the industry?
Indeed, it is not satisfactory for the Labour Tribunal (or the court) to determine whether the gig worker in issue is an employee or an independent contractor in each and every labour or labour related dispute between a gig worker and the client (who may be, in eyes of the law, an “employer”). But the Tribunal (or the court) may not be able to do away with this exercise.
Way forward
Perhaps gig workers are neither “independent contractors” nor “employees”. In reality, gig workers are more akin to independent contractors. That said, they are not “independent contractors” in a traditional sense; although they are self-employed, they provide their services as part of a profession or business undertaking carried on by someone else. Gig workers are probably in a class of their own, somewhere between “independent contractors” and “employees”.
One way of tackling the problem is to do away with a rigid dichotomy of one is working for another either as an independent contractor or an employees.
United Kingdom
In the United Kingdom (“UK”), their employment law distinguishes three categories of persons who enjoy varying degrees of labour protection, including:
1. those employed under a contract of employment (which is akin to the concept of “employees” under Hong Kong employment law);
2. those self-employed people who are in business on their own account and undertake work for their clients (which is similar to the concept of “independent contractors” under Hong Kong employment law); and
3. those “workers” in an intermediate class who are self-employed but provide their services as part of a profession or business undertaking carried on by someone else, who tend to have some characteristics of both of the above categories (and we have no such intermediate category of “workers” under Hong Kong employment law).
Generally, individuals are classified as “workers” if:
1. they have a contract or other arrangement to do work or services personally for a reward;
2. their reward is for money or a benefit in kind, for example the promise of a contract or future work;
3. they only have a limited right to send someone else to do the work (subcontract);
4. their employer has to have work for them to do as long as the contract or arrangement lasts; and
5. they are not doing the work as part of their own limited company in an arrangement where the “employer” is actually a customer or client.
Workers are entitled to certain employment rights, including but not limited to minimum wage, statutory leave pay and protection against unlawful discrimination. That said, workers are not entitled to minimum notice periods and protection against unfair dismissal.
The UK courts have ruled that regardless of whether an individual works in the gig economy, he/she will be entitled to the corresponding statutory employment rights and protections as long as respective requirements for each category are satisfied.
Singapore
Singapore and Hong Kong labour laws are similar. Like Hong Kong, an individual may perform work either as an “independent contractor” or an “employee”. Similarly, Singapore gig workers currently fall in a grey area between full-fledged employees and self-employed as they can decide the number of hours they work, but cannot set their own prices or build their own client pool. Instead of tackling the problem by having an intermediate or third category class like the UK, Singapore passed new legislation to specifically deal with gig workers’ rights.
Their Platform Workers Act which came into force with effect from 1 Jan 2025 provide protections for gig workers more in line with employees, where gig workers’ insurance will be mandated to cover medical expenses, income loss and lump sum compensation for permanent disability or death. It also enables gig workers to make Central Provident Fund contributions, which is similar to Mandatory Provident Fund in Hong Kong.
Hong Kong
There have been calls for the Hong Kong Government to address the labour law issues surrounding gig economy at least since 2021. The root problem is how to classify gig workers: are they “independent contractors” or are they “employees”?
If the Government wants to protect gig workers, particularly, those who are in a subordinate, dependent and vulnerable position, new law will need to be passed. The Government could perhaps review the current employment legislation framework and, akin to the UK model, create an “intermediate class” for gig workers and set out what rights and protections gig workers are entitled to. Alternatively, akin to the Singapore model, passes new legislations specifically dealing with gig workers’ rights and protections.
Takeaway
Things as they are, whether gig workers are “independent contractors” or “employees” remain the root problem. This question may not arise until there is a labour or labour related dispute, where this question will need to be determined by the Labour Tribunal or the court. This is not ideal. The benefits and protections under the Employment Ordinance and other relevant legislations are only available to a gig worker who is ruled by the Tribunal or the court to be “an employee”. This can be a time consuming and costly process.
In the meantime, the fact that the parties have entered into a service contract does not automatically mean their relationship is not one of employment. Whilst a properly drafted service contract may reduce the legal risks associated with misclassifying a gig worker’s status as an employee, the Tribunal will examine all the features of the relationship before deciding whether the relationship is one of employment. The Tribunal and the court have mentioned time and time again, each case will depend on its specific facts and circumstances. Therefore, it is advisable for platforms to clearly outline the nature of their relationship with the gig workers in the written service contracts. Platforms should also consider the level of control exercised over the gig workers as well as the allocation of financial risk within that relationship, and review all the other factors laid out in Poon Chau Nam. As always, if in doubt, it is advisable to seek legal advice.
1 See “Keeta riders in Hong Kong strike over pay reduction and no peak hour subsidies”, SCMP (10 May 2025)
2 See “Food delivery workers’ rights / Food printing innovation / Emerging Industry development”, RTHK Radio 3 (14 May 2025)
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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors. |
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Published by ONC Lawyers © 2025 |
