Digital platforms: independent workers or employees?

The number of digital platform companies in France has increased significantly in recent years, particularly in the areas of transport, food, odd jobs and hotels. French businesspersons win awards for the support they offer to those working in this new economy. However, French employment law has left a gap in addressing the specific status of workers in these growing markets. As a result, the contractual relationship between platform companies and independent workers continues to give rise to disputes, often where a worker is seeking to requalify an independent agreement into an employment contract.

On 28 November 2018, in a case brought against "Take Eat Easy" (a former meals delivery platform), the French Supreme Court ruled for the first time on the status of workers employed by a digital platform. Unlike the first instance and Court of Appeal decisions, which had confirmed the independent status of the workers under a services agreement with Take Eat Easy, the French Supreme Court requalified the relationship into one of employment. This judgment was surprising, given previous Employment Tribunal and the Court of Appeal decisions in similar cases had focused mostly on the freedom left to the workers to choose their working schedule (without being bound by any working hours) and the possibility left for them to work for several platforms, concluding that there was not an employment contract.

However, in its decision against “Take Eat Easy”, the French Supreme Court reverted to traditional criteria for recognizing the existence of an employment contract, ie looking at the power to:

• give orders and directives to the worker
• control the execution of the work
• sanction the worker.

In its decision on 28 November, the French Supreme Court considered as key to the relationship: a) the existence of a geolocation system, enabling the platform to track in real-time the courier's position and to monitor the number of kilometres travelled; and b) the possibility for the platform to sanction the worker. The court therefore concluded that the relationship was not that of an independent worker and that there was an employment contract.

A decision made by the Paris Court of Appeal on 10 January 2019 in a case against Uber followed the same reasoning while requalifying (for the first time in France) the relationship between the driver and Uber into one of employment. The Paris Court of Appeal paid particular attention to the fact that: the driver does not have the option to take on other clients during an Uber ride or to contact directly the clients after a ride; a certain number of instructions are given to the driver regarding how to perform his assigned job; he does not determine the prices; and he can be sanctioned in case of non-compliance with the instructions given. The fact that the workers are entirely free to decide when they want to work, and to choose whether or not to connect on the Uber platform, was not considered to be a determining factor for the existence or not of an employment contract.

So, should we expect an influx of claims leading to the requalification of workers on this type of platform in France? If the economic model of these platforms is not revised and the nature of the contract binding them to their workers is not reconsidered, it is possible. Businesses should therefore undergo an in-depth analysis of its internal processes and the guidelines that are communicated to employees, to avoid the risks of requalification.