Introduction

In 2023, the Labour Tribunal in Cheung Ka Yan and ors v Kin Shun Information Technology (Hong Kong) Ltd & Ors (unreported, LBTC 3170/2022, 29 May 2023) determined that six gig workers who worked for Zeek, a company which at the relevant time operated a food and parcel delivery platform, were employees by reason that Zeek had dominant control over them by managing and monitoring every aspect of their respective deliveries, provided equipment to the gig workers and prohibited them from other work engagement with its competitors. See our article on “First Hong Kong Labour Tribunal decision to rule gig worker couriers are employees” (Click here to read more).

Recently, the District Court ruled in Gurung, Sanjayaman v Deliveroo Hong Kong Limited [2024] HKDC 1932 that a former gig worker rider of Deliveroo Hong Kong Limited (“Deliveroo”) was not an employee but an independent contractor. In reaching its decision, the Court took into account of the terms of the written contract between the parties as well as the working conditions of the relationship.

Background

A former gig worker rider of Deliveroo (“Claimant”), claimed to have sustained injuries in February 2022 during one of his deliveries and applied for compensation under the Employees’ Compensation Ordinance (Cap. 282) (“ECO”). Section 5(1) of the ECO 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).

The respondent, Deliveroo, applied to strike out the Claimant’s application, on the basis that the Claimant 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.

Analysis

By referring to the eleven factors laid out in the landmark decision of the Court of Final Appeal in Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156, the Court analysed whether there was an employment relationship between the Claimant and Deliveroo.

1.      Control

The Claimant had the liberty to accept or decline any orders presented to him and was not obligated to meet a certain quota of deliveries within a given timeframe. The basic tracking features on the Rider App was adequately justified by the practicalities and necessity for operational efficiency. As such, Deliveroo had a low degree of control over the Claimant.

2.      Whether the Claimant provided his own equipment?

The Claimant supplied and operated his own motorcycle and mobile phone. Although Deliveroo provided the Rider App, the Court distinguished the Rider App from the traditional meaning of equipment. As such, the Claimant provided his own equipment.

3.      Whether the Claimant could hire his own helpers and 

4.      Whether the Claimant could perform his own business?

The Claimant had the right to assign delivery tasks to third parties and participate in other business activities as expressly provided in the written contract. Whether the Claimant opted to exercise such right is irrelevant.

5.      The degree of financial risk the Claimant took and 

6.      Whether the Claimant could profit from sound management in performing his task?

The Claimant maintained his own motorcycle, covered all related expenses and assumed the risk of any traffic violations. Therefore, the Claimant retained both the financial risk and profits.

7.      Whether the Claimant assumed investment and management responsibility?

The Claimant had the freedom to accept orders and managed his work schedule while considering the costs for his own equipment. The Claimant was responsible for making management and investment decisions regarding his work, which influenced his productivity and his income. As such, the Claimant assumed investment and management responsibility.

8.      Whether the Claimant could be identified as part of Deliveroo’s business?

The Claimant was not in a continuous engagement and had no management responsibilities with Deliveroo. Although Deliveroo recommended the use of its branded equipment, the Claimant was not obligated to use it. As such, the Claimant could not be identified as part of Deliveroo’s business.

9.      The parties’ own views of their relationship

The parties expressly agreed that the Claimant was an independent contractor and there was no reference to an employment relationship in the written contract.

10.   Incidence of tax and insurance

Deliveroo did not make any MPF contributions or tax filings for the Claimant. Deliveroo only provided for the Claimant a voluntary insurance policy that was not legally required.

11.   Structure of the trade and arrangements within the industry

The Court noted that there was no industry standard or usual structure of the trade which could provide substantial guidance and acknowledged that the facts of the Zeek case were distinguishable.

Finally, the Court ruled that there was no employment relationship between the Claimant and Deliveroo and struck out the Claimant’s case in favour of Deliveroo.

Takeaway

In our article “Revisiting labour rights of gig workers: whether new labour laws are necessary?”, we discussed whether gig workers are employees or independent contractor (i.e. self-employed), and whether new labour laws are necessary (Click here to read more).

Under Hong Kong labour laws, an individual may perform work either as an “employee” or an “independent contractor”. Unlike some other jurisdictions, such as the United Kingdom, there is a third category (called “workers”), which is an intermediate class of persons 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 an independent contractor as well as an employee. There is no such intermediate category of “workers” under Hong Kong law.

Since there is no such intermediate category in Hong Kong, when disputes arise, whether a gig worker is an employee or an independent contractor will need to be determined by the Labour Tribunal or the courts on a case by case basis.

Indeed, in the Deliveroo case, the Court expressly indicated the complexities involved in determining whether a worker is an employee or an independent contractor. While each case will depend on its specific facts and circumstances, it is advisable for employers to clearly outline the nature of their relationship with the workers in the written contracts and to consider the level of control exercised over the workers as well as the allocation of financial risk within that relationship. By thoroughly addressing these matters and properly documenting them, employers can reduce the legal risks associated with misclassifying a gig worker’s status. As always, if in doubt, it is advisable to seek legal advice.

For enquiries, please feel free to contact us at:

E: employment@onc.hk                                                    T: (852) 2810 1212 W: www.onc.hk                                                                    F: (852) 2804 6311 19th Floor, Three Exchange Square, 8 Connaught Place, Central, Hong Kong

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.

Published by ONC Lawyers © 2025