In a recent decision1, the Cour de cassation (the French civil and criminal Supreme Court) has ruled that a delivery rider using the services of an online platform and an app ("Take Eat Easy"), which connects restaurants, clients ordering food, and delivery riders, may be considered to be an employee of such a platform despite having self-employed status.
The French Supreme Court has considered that in this particular case an employee-employer relationship could be established since:
- the app included a geo-tracking system which enabled the company to monitor the delivery rider's position in real time and to list the number of kilometers ridden; and
- the company held a disciplinary power over the delivery rider since a penalty system was in place, through which progressive sanctions could be imposed according to the nature/scope of the negligence committed by the delivery rider
In a press release, the Cour de cassation explained that this decision is in line with its long-standing position on the criteria distinguishing between self-employed and employee status. In order to identify an employment relationship, the court looks for the existence of a subordinate relationship defined by "the performance of work under the authority of an employer which has the power to give orders and directives, to control the performance of work and to sanction the lack of performance of its subordinate". This assessment is made on the basis of factual circumstances, irrespective of the terms and conditions of the contract.
Over the years, the Cour de cassation has used the same criteria to re-characterize several types of self-employed relationships into employment relationships, notably as regards taxi drivers, participants in TV shows, franchisees, etc.
This is the first time the Cour de cassation has ruled on the status of delivery riders working for online platforms. However, this decision cannot be considered as reversing previous court positions or setting out a new position. The Cour de cassation does not refer to the criteria of economic dependence promoted by some authors, which would have allowed a re-characterization every time a delivery worker is fully dependent on a platform to get work.
It should be noted that in 2016, two laws2 introduced a legal definition of online platforms and minimum social protection for platform workers. In 2018, a new law3 had introduced new provisions enabling platforms to set up a charter defining work conditions and social benefits. In such a case, online platform workers would be deemed self-employed workers. This section of the law, however, was censored by the French Constitutional Court for procedural reasons (cavalier législatif). Such provisions may well be reintroduced in a new draft law. Should such a law be adopted, employers should carefully examine the combination of those provisions with the position of the Cour de cassation as set out in this decision.
1 Cass. soc. 28 November 2018 n°17-20.079.
2 Law n° 2016-1321 of 7 October 2016 for Digital Republic, and Law n° 2016-1088 of 8 August 2016 relating to employment, modernizing of social dialogue and securing career paths
3 Law n° 2018-771 of 5 September 2018 for the liberty to choose a professional future.