Uber drivers are employees according to the French highest jurisdiction

On 4 March 2020, the highest French court (the Cour de Cassation – the Supreme Court) passed its first and eagerly awaited decision on the employee status of Uber drivers.

The Supreme Court approved a ruling of the Paris Court of Appeal, that found that an Uber driver was operating under a relationship of subordination and that his contractual relationship with the Company should be reclassified as an employment contract.

Case law precedent

This decision is the second of its kind on the status of web platforms employees, following a decision in November 2018 where the Court found that independent bike drivers of the food delivery platform “Take it Easy” should considered as employees. The French Supreme Court’s affirms and clarifies its position through this high profile Uber case  

Clarification on the French existing worker’s status

This clarification was much needed, given the conflicting decisions of the French employment tribunals and Courts of Appeal on the status of the gig economy workers. Over the past few years, there have been some attempts to introduce changes in French legislation to protect the new and growing number of web platform employees (or gig economy workers). Since 2016, the French employment code, for instance, states that technology platforms have a social responsibility towards independent workers who perform their professional activity using the platform’s apps.

Nevertheless, it remains the case that French legislation does not accommodate for a new legal category of workers. Unlike other countries such as Italy and the UK, where a specific status has been created for workers that are considered neither as employees nor as independent contractors, there is to date no such interim status in France.

In its explanatory note, the French Supreme Court has restated that work can be performed under either a self-employment or employment contract.  Self-employment allows individuals to build up their own clientele, set their own rates and terms and conditions on which they will provide their services, whereas an employee does not benefit from such freedoms.

Under French case law, the existence of an employment contract results from a relationship of subordination that is based on the employer’s power to give instructions, to oversee their execution and to discipline the individual for any non-compliance with the instructions given.

The French Supreme Court has interestingly stuck to this traditional definition of the employment relationship in the Uber case. It has refused to rely on other criteria, such as the economic dependency existing between the drivers and the Uber Company, that lower jurisdictions’ judges have emphasised.   

The existing relationship of subordination between Uber and its drivers

In this case, the French Supreme Court has noted that a relationship of subordination exists between Uber and its driver as:

• the driver joined a transportation service organisation that was entirely created and managed by Uber. In this context, the driver could not built up its own clientele, freely set his rates and determine the terms and conditions of his transportation services ;
• Itineraries were put together by Uber and given to the driver, and his fares were adjusted if he did not stick to them;
• the final destination of the rides were sometimes not revealed by the app, so that the driver was not in a position to freely choose where to go;
• Uber could temporarily disconnect the driver from the app if he had declined more than three rides and;
• Uber could block access to the driver’s account where an order cancellation rate was exceeded or in case of “problematic behaviour”.

The French Supreme Court has also approved the Court of Appeal’s reasoning, stating that the freedom to choose whether to work and choose one’s working hours was not in itself inconsistent with the existence of a relationship of subordination.

For the above reasons, the Uber driver’s self-employed contract did not correctly reflect the relationship and therefore was reclassified as an employment contract.

What next?

With the development of information and communication technologies and the prevalence of new on-demand services, work is evolving and a new labour force is emerging.  Working conditions are increasingly departing from those imposed on traditional employees.

The French Supreme Court’s decision shows that flexibility, the ability to choose when to work and how long for, and the reduced control of employers does not match up with the traditional definition of an employment relationship.

This Supreme Court’s decision now urges the French legislator to decide whether a new legal status should be created for this emerging category of workers. If the law remains the same,  web platforms would have no choice but firstly to offer employment contracts to their drivers, which seems hard to conceive in practice and would put their business model in question, and  secondly to try and find a way to guarantee the driver’s ability of having their own clientele, set their own rates and service provider terms and conditions to avoid the likely influx in employment contract reclassification claims.

This article was written by Kim Campion and Laure de Ganay. For more information, please contact Kim on +33 (0)1 70 99 09 20 or at kim.campion@crsblaw.com and Laure on +33 (0) 1 70 99 08 87 or at laure.deganay@crsblaw.com.