Further to the reclassification of the service agreement between an independent deliveryman and Deliveroo, ordered by a Spanish lower Court, French jurisdictions recently shifted position, considering that several independent workers should be deemed employees of the platform that they were working for.
1. Recent French case law
1.1. In France, this new trend was originated by a French Supreme Court’s decision dated 28 November 2018, concerning the meal delivery platform, Take Eat Easy.
In this case, both the Labor Tribunal and the Court of Appeal had rejected the deliveryman’s claim to have his service agreement reclassified as an employment contract. Judges considered that the independent contractor was free to choose when he wanted to work and considered that the bonus-malus system applied by Take Eat Easy was not sufficient to characterize the alleged subordinate relationship.
The Supreme Court judges reversed the Paris Court of Appeal’s ruling :
(i) They recalled the following principles:
(ii) In light of these, they observed that :
1.2. Lower courts have already started to abide by this new position.
Very recently, the Paris Court of Appeal has indeed changed sides and reclassified the service agreement entered into by Uber and one of its driver into an employment contract (Paris Court of Appeal, 10 January 2019), considering that :
Even though Uber has lodged an appeal in front of the French Supreme Court, this case law entails an important risk of reclassification of service agreements between digital platforms and individual contractors as employments contracts.
As a reminder, such reclassification entails:
1.3. A few days ago, the Nice Labour Tribunal also fell into line with the French Supreme Court, in a case also concerning Take Eat Easy (CPH Nice, 22 January 2019). The deliveryman’s claims were upheld on two counts:
Such acknowledgement of concealed work by the Labour Tribunal may affect the pending criminal proceedings introduced by independent deliverymen.
2. What now ?
While waiting for further clarifications from the French jurisdictions, two main options can be envisaged by digital platforms in order to mitigate those risks :
Legislative changes can still redistribute the game’s cards. However, for the moment, the “Mobility” draft bill of 26 November 2018 limits itself to offering the possibility for digital platforms to implement a social responsibility charter, which the bill states would not characterize the existence of a subordinate relationship between the platform and the worker. Such provision is not fully securing for digital platforms as it does not preclude a worker claiming for the reclassification of his/her contract as an employment agreement on the basis of the recent court decisions.
Caution is therefore more than ever required for GIG Economy platforms.