In a judgment widely commented on by the press dated November 28, 2018 (for the full judgment, click hither), the Court of Cassation ordered the reclassification of a bicycle delivery contract, employed by the company “Take It Easy”, as an employment contract. Many commentators saw in this judgment the questioning of the practices operated by networking platforms such as Uber or Deliveroo. However, the analysis of the High Court's judgment calls for greater restraint as to the scope of the decision rendered.
As a reminder, the company Take Eat Easy (closed in 2016) used a digital platform and an application to connect partner restaurant owners, customers ordering meals through the platform and bicycle delivery people operating under a self-employed status.
While the company is in liquidation, one of the former couriers of this company, working under the status of auto-entrepreneur, refers to the Labor Court in order to obtain the reclassification of his contract for the provision of services as an employment contract. The courier claims that the working conditions placed him, in practice, in a relationship of subordination with respect to the company Take It Easy and that it was therefore necessary for the labour courts to ascertain the existence of an employment contract.
The Labor Court and then the PARIS Court of Appeal rejected the employee's arguments and declared themselves incompetent on the ground that there was no employment contract. The Paris Court of Appeal, in line with its judgment” Uber ” notes in particular that if a system of bonuses and penalties were put in place to favor the most responsive couriers and that the platform had the possibility, in the event of the courier's breaches of his contractual obligations, to put an end to his interventions, this cannot characterize the existence of a relationship of subordination insofar as the courier remained completely free to choose his working hours and was not bound by any exclusivity clause. or non-competition.
The employee appeals to cassation and wins his case at the end of a judgment whose motivation is questionable and whose scope must necessarily be measured.
After recalling that” the existence of an employment relationship depends neither on the wishes expressed by the parties nor on the name they gave to their agreement but on the actual conditions under which the activities of the workers are carried out; that the relationship of subordination is characterized by the performance of work under the authority of an employer who has the power to issue orders and instructions, to supervise their execution and to punish the breaches of his subordinate ”, the Court of Cassation overturned the judgment of the Court of Appeal by considering that the elements found characterized the existence of a relationship of subordination and should therefore lead to the reclassification of the relationship as an employment contract.
For the High Court, the fact that the company Take It Easy was in a position to monitor in real time the position of the courier and the accounting of the total number of kilometers traveled and, where appropriate, through a system of penalties, to punish the courier, characterizes the existence of a relationship of subordination and must lead to the recognition of an employment contract.
It is true that the organization set up within Take It Easy and the level of development of the penalty system was particularly important in that it went beyond the simple possibility of terminating the contract. In fact, the company Take It Easy reserved the right in particular to apply financial penalties (loss of bonus) to couriers deemed to be at fault, to temporarily unsubscribe them and to invite them to an interview to “discuss” the difficulties encountered, which could be perceived as a warning or a reminder to order and therefore bring the contractual relationship closer to an employment relationship.
However, such a motivation seems doubly questionable to us:
1°/ On the one hand, the possibility of applying penalties or of ending contractual relationships with a service provider due to breaches committed by the latter is provided for by the legislator in article 1217 of the Civil Code and regularly recalled by the High Court (Cass. Com. November 8, 2017, No. 16-22289).
However, the finding of the existence of a breach necessarily implies a look at the quality of the service provided, which should not be confused with the employer's supervisory power. It is up to the service provider who considers that his contract has been broken illegitimately or abruptly to refer the matter to the commercial courts to obtain compensation (Cass. Com. April 5, 2018, No. 16-19923).
As a result, the possibility for the company Take It Easy to terminate the courier's service in the event of the courier's breaches could not, in itself, be confused with the disciplinary power of the employer and justify the reclassification of the service contract into an employment contract.
2°/ On the other hand, the geolocation of couriers was justified by the logistical organization of the platform and was not primarily intended to control the work performance of couriers. Since they were in fact partly paid according to the distance travelled, the implementation of a geolocation tool was objectively necessary.
All the more so as couriers were free to register for work periods as they saw fit, with no minimum attendance requirement. Finally, couriers were not bound by any exclusivity or non-competition clause.
In any event, and taking into account the specificities associated with the level of development of the penalty system in place within the company Take It Easy, the judgment delivered by the Court of Cassation on November 28 cannot be considered as sounding the death knell for networking platforms in a systematic manner, and more generally, of companies that rely heavily on self-employed workers given the diversity of existing organizations.
However, where necessary, they must ensure that their practices are adapted in order to limit the risks pending clarification of the position of the Court of Cassation.
