Status of platform workers, overview of the case law
28 June 2022
The majority of platform workers are self-employed entrepreneurs who use one or more electronic platforms to carry out their professional activities. These include Uber drivers and Deliveroo delivery drivers, to name just two of the best-known platforms, but this business model is booming.
The French Labour Code attaches a presumption of non-salaried status to workers with a self-employed status.
Indeed, according to article L 8221-6 of the French Labour Code, natural persons registered in the various professional registers and directories are deemed to be non-salaried. However, this presumption can be reversed, leading to a reclassification of these self-employed workers as employees. This change of status is not trivial, and entails the application of all the rules of Labour law (paid vacations, right to strike, freedom of association, medical examination, minimum wage, regulated termination of the contract, taxes and social contributions on salaries, overtime or employer’s liability…). All these upheavals, which are in the interest of the worker and frighten digital platforms, depend on the existence of a subordination link between the platform and the workers. It is this link that case-law is trying to define more and more precisely, not without difficulty, through decisions of social and criminal courts.
In five key decisions, French judges have outlined the clues that could lead to the reclassification of the status of platform workers as employees. This analysis allows employers to understand where the limits are not to be crossed concerning the directives, the control of the execution and the sanctions for the non-execution of the missions of platform workers.
On March 4, 2020, the Labour Chamber of the French “Cour de Cassation” recognized the existence of a subordination link in the “UBER case” (Cass. Soc. March 4, 2020, n°19-13.316). Indeed, the power of direction was characterized by the impossibility for the driver to choose his customers and by the incentive to remain constantly connected on the application subject to loss of access to the account in case of too frequent disconnection. The power of control was characterized by the algorithms predicting the route and tracking by geolocation. Moreover, in case of inefficiency, the driver sees the price of his trips reduced. Finally, the power of sanction was illustrated in the loss of access to the application for reasons “at the discretion of the UBER platform“.
In line with this decision, on June 24, 2020, the “Cour de Cassation” again characterized a subordination link in the “Take Eat Easy case” (Cass. soc. June 24, 2020 n°18-26.088). This judgment states that geolocation is a tool for monitoring the performance of workers. Moreover, the penalties implemented by the platform such as loss of bonus, summons or loss of access to the account are evidence of the characterization of a sanctioning power.
Judges do not automatically reclassify self-employed workers as employees and try to analyze each situation. Thus, on April 5, 2022, the “ClickWalker case” (Cass. Crim. April 5, 2022 n°20-81.775) reminded us in which case the subordination link cannot be characterized. On this platform, the workers can abandon their mission during its performance. The company has no means of control during the performance of a mission, it only checks the result in order to release the compensation in case of success, which, for the High Court, is the very principle of any commercial contract.
Similarly, on April 13, 2022, the Labour Chamber, in the “LE CAB case” (Cass. soc. April 13, 2022 n°20.14-870) recalled that the cluster of evidence ensuring an insertion of the worker in an organized service is not sufficient to demonstrate the existence of a subordination link. Here the Court states that geolocation and the evaluation of services are two things inherent to the services of platforms and therefore cannot constitute a power of control or sanction. This decision allows to redefine the level of control and sanctions that platforms can reach without risking to enter into the framework of subordination.
In opposition to these last two decisions of the Labour Chamber, the Criminal Court, on April 19, 2022, sanctioned the Deliveroo platform with the maximum penalty for concealed work, i.e. 375,000 euros for abuse of the workers’ self-employed status. This sanction was motivated by a set of indicators. In particular, it was emphasized that it was the platform that created the service offer and not the delivery person, and that there was a real operational framework in the form of a special outfit and invoicing elements provided by the company. Moreover, these workers are in a situation of economic dependence and do not have the means to work for other market players. Not to mention the problem of geolocation, which is synonymous with control by the platform. The Deliveroo company has appealed and denies the existence of any link of subordination between the platform and the independent workers. This decision is important, especially since the Court followed the opinion of the Labour Chamber of the “Cour de Cassation”, which it had consulted beforehand. The opinion was therefore shared by this social court, making the jurisprudential landscape even more fluctuating.
In the absence of a homogeneous definition of the status of platform workers by the courts, the legislator has been able to get around the problem of requalification by directly supervising platform workers and by ensuring that the latter, even if they do not qualify as employees, can have access to social dialogue. Thus, we can underline the creation, on April 21, 2021, of an Authority of Social Relations of Employment Platforms (ARPE) in charge of regulating the social dialogue between the platforms and the workers who are linked to them by a commercial contract. The ARPE organizes elections and training for platform workers’ representatives and protects them in the event of breach of contract. The goal is to negotiate with the platforms their right to better working conditions in the near future.