For several months, the dispute relating to the reclassification of service contracts concluded between VTC drivers and the main platforms in the sector (UBER, Chauffeurs Privés or LeCab) into an employment contract has not stopped being talked about.
While some observers, supported by the first decisions made on the subject in France or abroad, expected UBER and other players in the sector to receive serial convictions, the courts now seem less likely to grant drivers' requests and strictly assess the existence of an employment contract.
The Paris Labour Court, in a widely commented decision on January 29, has thus rejected an UBER driver who asked that the contract that linked him to the platform be reclassified as an employment contract. The Labor Court thus considered that the employee had total freedom in the organization of his working time, no work schedule being imposed on him by UBER, so that the existence of a relationship of subordination was not demonstrated, thus excluding requalification into an employment contract.
In this regard, it should in fact be remembered that the proof of the existence of a relationship of subordination weighs on the employee, the relationship being presumed to be non-employee.
On this basis, the PARIS Court of Appeal, in a similar case, had already refused to recognize the existence of a contract of employment with respect to a driver notwithstanding a service contract which provided that (CA Paris, November 16, 2017, no. 16/09647):
- The company provided the service provider with a vehicle, a telephone and a gas card;
- The driver had to be dressed elegantly and behave irreproachably towards customers;
- The company reserved the right to terminate the contract in the event of an insufficient acceptance rate of races and an average rating of less than 4.5/5 by the company's customers.
The Court thus recalls that the terms of the contract alone are not sufficient to demonstrate the existence of a relationship of subordination, regardless of the loss of the self-employed person's regime or its removal from the special regime for commercial agents.
While the terms of the service contract might suggest a limited margin of manoeuvre on the part of the driver, the Court notes that none of the evidence produced demonstrated that the driver was not free to organize his working time and choose schedules, or that he would have received orders or instructions in the course of carrying out his activity.
The Court also notes that the driver was free to work for other service providers and that the mere fact that he decided to work only for one supplier could not constitute an impossibility of carrying out his activities for the benefit of another company.
In these conditions, she refuses to reclassify the service contract as an employment contract insofar as the existence of a relationship of subordination is not demonstrated.
In parallel with this strict assessment of the existence of an employment relationship by the labor courts, it should be noted that the Paris Social Security Affairs Court also dismissed the URSSAF of an application for redress filed against UBER and based, according to the URSSAF, on the basis of the requalification of certain VTC drivers who worked under the status of self-employed persons as employees (Paris Social Security Court, December 14, 2016, No. 16-03915).
In this case, the Court found that URSSAF had not respected the formalism provided for in Article R. 133-8 of the Social Security Code by not providing the minutes of the hearing in the context of exchanges with UBER and, in doing so, had violated the adversarial principle.
While the Tribunal takes the procedural step of dismissing the URSSAF and refusing to reclassify service contracts as an employment contract without deciding on the merits of the debate, this judgment has the merit of recalling that the reclassification of UBER drivers as an employment contract is not a given.
Under these conditions and faced with the strengthening of the assessment of the conditions for recognizing an employment situation, litigation and the related risk could shift from labour courts to commercial courts, where actions seeking compensation for abrupt termination of commercial relationships could have a better chance of success..
It should in fact be remembered that the Commercial Code punishes the abrupt termination of an established commercial relationship, without written notice taking into account the commercial duration and respecting the minimum period of notice determined in reference to commercial practices (article l. 442-6, I, 5° of the Commercial Code).
Such actions could thus be open to drivers and various service providers against their counterparty in the event, for example, of a sudden break in old commercial relationships motivated by a lack of connections.
HUBERT Avocat is in a position to assist you in the management of disputes related to the problems of reclassification of commercial contracts into employment contracts and in the context of the termination of commercial contracts.
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