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In a noted and widely commented judgment of 4 March 2020 (available by clicking hither), the Court of Cassation had to rule on the requests of drivers, who worked under the status of self-employed workers, for recognition of the existence of an employment contract linking them to the famous platform.
Beyond the media and specific case of Uber drivers, this decision is an opportunity for the High Court to recall that”the criteria of self-employment relate in particular to the possibility of establishing its own clientele, the freedom to set its rates and the freedom to define the conditions for the execution of its service.”
And that at”Conversely, in the context of an employment contract, the relationship of subordination is based on the employer's power to give instructions, to monitor their execution and to punish non-compliance with the instructions given.”
In the specific case of the Uber drivers whose situation it had to analyze, the Court considered that Uber drivers did not meet any of the criteria for self-employment: the itinerary was imposed by the company and in the event of non-compliance with that itinerary, price corrections, which were equivalent to sanctions, were applied.
In the same vein, the Court notes that, starting from three refusal to buy,”Uber can temporarily disconnect the driver from its application. If an order cancellation rate is exceeded or “problem behavior” is reported, the driver may lose access to his account.”.
In other words, the driver cannot freely choose his trips and is in reality participating in a”organized transport service whose conditions of operation are unilaterally defined by the company Uber”.
Thus and for the High Court, all of these elements characterizes the existence of a relationship of subordination between the driver and the Uber company when connecting to the digital platform, his self-employed status being only fictional, of little importance than the driver.”is not required to connect to the platform and that this absence of connection, regardless of the duration, does not expose him to any penalty”.
The Court of Cassation thus considers that the absence of scheduling, a usual prerogative of the employer and characterizing its managerial power, is not sufficient to rule out the existence of a relationship of subordination during the performance of the service.
In these conditions, the Court of Cassation rejects the appeal filed by Uber and confirms the validity of the decisions of the Court of Appeal, which had condemned Uber, and which were contested before it.
Because of its very broad wording, this judgment calls into question the system set up by Uber in general, regardless of the situation of drivers taken individually. In other words, this decision is intended to apply to all litigation and ongoing situations for drivers who have been subject to this control system by Uber, which should lead to numerous serial convictions, both on the labour and social levels.
There is no doubt that this resounding decision will call on networking platforms of this type to review their economic model in order to limit the risk of litigation.
Beyond these platforms and if this judgment is issued concerning a very specific situation, it also calls on professionals using self-employed workers, whether in the real estate or consulting sectors, who are largely adept at using freelancers, to monitor their practices more closely to avoid the risk of requalification.
Tristan Hubert
