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France – An independent worker on a digital platform is not an employee. But…

Written by
Capstan Avocats, the law firm setting the benchmark for labour law in France.
The French Court of Cassation has ruled for the first time on how to define the contract between a self-employed person and a gig economy platform.

A judgment relating to a very specific set of circumstancesThe judgment,rendered on 28 November 2018 by the social law chamber of the Court of Cassation, dealt with the very specific situation of an independent worker who had been sanctioned by a gig economy digital platform that has since ceased to exist. It is accompanied by an explanatory note revealing more broadly the Court of Cassation’s thinking on the employment relationship between independent workers and digital platforms (such as Uber, Deliveroo or Stuart).The Labour Law of 8 August 2016 created a social responsibility (and not ‘societal’ as indicated by the Court by mistake in its press release) for gig economy platforms by inserting articles L. 7341-1 to L. 7341-6 into the Labour Code. The Court of Cassation held that the rights (including the right to unionise and take strike action and the right to professional training), granted to self-employed workers by these articles were not accompanied by an absolute presumption of non-wage-earning (this provision was withdrawn from the draft law).According to the Court of Cassation, its settled case law on employment contracts must therefore apply: irrespective of the manner in which the parties describe the contract between them, an employee is someone who performs work in a subordinate relationship. A subordinate relationship is characterised by the performance of work under the authority of an employer who has the power to issue orders and instructions, to supervise performance and to punish breaches (Cass Soc., 13 November 1996, No. 94-13.187).It is up to trial judges to assess on the merits the factual and evidentiary elements that help determine the existence or otherwise of a subordinate relationship, not to the Court of Cassation. The social chamber, however, checks the reasoning of the lower courts and ensures they draw the legal consequences of their findings (Cass Soc., 1 December 2005, 05-43.031 to 05-43.035).

In this case, Take Eat Easy (TEE) used a digital platform for the delivery of restaurant meals. It used a mechanism provided for in couriers’ contracts that was atypical in the platform sector, called ‘strikes’. The strikes mechanism allowed TEE to multiply controls and constraints (such as financial penalties or calling drivers for an interview) aimed at forcing couriers to respect the numerous instructions set out in their service contracts. The Court of Cassation considered these provisions amounted to sanctions.TEE has since gone bankrupt and the liquidator refused to include a courier’s demand for payment for deliveries carried out in the liabilities of the liquidation. The courier then asked for his contract to be requalified as an employment contract.

The Court of Appeal noted in particular that the application was equipped with a geo-location system allowing the company to monitor the courier’s position in real time and to record the total number of kilometres travelled, so that the role of the platform was not limited to linking the restaurant owner, the customer and the courier. The company also had the power to sanction the courier.According to the Court of Cassation, it follows from these findings that the judges on the merits could not dismiss the possibility of holding the arrangement was an employment contract, despite the absence of exclusivity and the courier’s freedom to choose his time and days of work.The Court of Cassation (as for all self-employed workers and service providers) limits the scope for reassessing a self-employed worker as an employee to cases that it considers to be abusive or unfair in relation to its usual criteria.A missed opportunity to adapt case law to a new form of professional relationship

It is surprising that the Court of Cassation, unlike the trial court, wanted, at all costs, to apply its old criteria to a new situation, whose specific characteristics do not appear to have been taken into account. In the face of the recent transformation of professional relationships, it might have been desirable to allow the criteria for the assessing whether an employment relationship exists to evolve, as it has in numerous decisions rendered by trial judges on this question.The Court has thus ignored both the legislative intent behind the 2016 amendments to the Labour Code, which was undoubtedly to strengthen the presumption of non-salaried work and the specific characteristics of a digital platform that must necessarily interact with several thousand self-employed individuals according to modern and standardised processes. This judgment seems to deny the atypical nature of this professional relationship, despite it being recognised in the Labour Code, which states that a platform can unilaterally set service standards and pricing.The case will now be referred back to a different composition of the Paris Court of Appeal. The Court of Appeal may decide to push back on the question of the criteria for recognition of employee status. In any case, it will have to re-examine the factual elements of the case and check whether or not the courier was permanently legally subordinate to TEE.Far from putting an end to the debate on the status of independent workers on digital platforms, this Court of Cassation judgment, delivered on very specific facts, is only one stage in the laborious process of establishing the rules that should apply to this new category of workers. Be that as it may, the fact remains that an independent worker on a digital platform is not an employee, except in exceptional circumstances.

Aurélien Louvet
Partner - France
Capstan Avocats