A UBER DRIVER is an employee according to French courts

On the 4th of March 200, (case n°19-13.316), the Social chamber of the Cour de cassation (french civil and commercial supreme court) has rendered an important decision regarding the relation between UBER and a driver. The Cour de cassation has approved the appeal decision who had qualified this relationship has an employment relationship.

Under french law an employment relationship is mainly defined by a relationship of subordination. The Cour de cassation had therefore to answer if the relationship of subordination had been correctly defined and applied by the Court of Appeal.

According to the Cour de cassation, the relationship of subordination is characterized by the performance of work under the authority of an employer who has the power to give orders and directives, to control their execution and to punish the failings of his subordinate. Work within an organized service may constitute an indication of subordination when the employer unilaterally determines the conditions of its execution.

The Court of appeal has legally qualified as an employment contract the relationship between a driver and the company using a digital platform and an application to bring together customers and drivers operating under the status of self-employed workers.

This qualification was based on different elements.

1°) the driver had integrated a transport service created and entirely organised by this company, a service which exists only thanks to this platform, through the use of which he did not constitute his own clientele, did not freely set his rates nor the conditions of exercise of his transport service,

2°) the driver was imposed a particular itinerary of which he was not free to choose and for which tariff corrections were applied if the driver does not follow this itinerary,

3°) the final destination of the ride was sometimes not known to the driver, who couldn’t really choose freely, as an independent driver if this ride suited him or not,

4°) the company had the right to temporarily disconnect the driver from its application as of three refusals of journeys and that the driver could lose access to his account in the event of exceeding an order cancellation rate or of reports of « problematic behaviour ».

These elements proved for the Court that the driver was under the authority of an employer who had the power to give orders and instructions, to monitor their execution and to punish breaches.

According to the Cour de cassation the driver’s self-employed status was therefore fictitious.

This is the second decision that the Social Chamber of the Cour de Cassation has rendered regarding these types of platforms. A decision had already been rendered regarding Take Eat Easy, a platform to deliver food from restaurants. (Soc., 28 November 2018, appeal no. 17-20.079, published).

The principles applied by the Cour de cassation are far from new. This definition exists since 1996 (Ruling Social Chamber 13 November 1996, n°94-13.187).

« the subordination link is characterized by the performance of work under the authority of an employer who has the power to give orders and directives, to monitor their execution and to sanction the failings of his subordinate; work within an organised service may constitute an indication of the subordination link when the employer unilaterally determines the conditions of performance of the work« .

Baded on the same principle and with a similar reasoning, French courts have also considered that candidates in reality shows were also employees of these TV shows.

The importance of this decision is therefore not in the legal definition of an employment relationship but to its application to online platforms and their relations with their drivers.

Uber drivers are now considered as employees unless if these platforms give more freedom to their drivers and if these drivers are truly independent.

The ruling is in accessible in English Here

By Olivier VIBERT,

Attorney, Paris,

IFL AVOCATS

https://www.courdecassation.fr/IMG/20200304_arret_uber_english.pdf

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