The ruling of the Cour de Cassation (the French civil and criminal Supreme Court) was very much expected on a Uber case regarding a self-employed driver claiming re-characterization of his relationship with Uber into an employment contract. The decision was published this 4 March with a press release.1
The Cour of Cassation examines the way business relationships were organized and rules that all of these elements characterize the existence of a relationship of subordination between the company Uber and the driver when connecting to the digital platform, the driver’s self-employed status being merely fictitious.
It also ruled that the criteria for self-employment include the possibility of building up one's own clientele, the freedom to set one's own rates, and the freedom to set the terms and conditions for providing one's services.
This is the second decision from the Cour of Cassation related to platform workers, following the ruling in the Take Eat Easy case.2 In this previous case, the court had taken a very classic approach reminding its long standing definition of an employment contract which is defined by a subordinate relationship based on the employer's power to give instructions, to oversee their execution and to sanction non-compliance with the instructions given.
This definition is reminded by the Cour de cassation in this new decision, but the court adds the above mentioned definition of a self-employed relationship. It should be noted that the analysis takes into account some economic elements hence partly accepting the arguments of some authors that economic dependency should be seen as a subordinate relationship.
However, the analysis is twofold:
- Is the self-employed status fictitious?
The court answers yes, noting that drivers who use the Uber application do not build up their own clientele, do not freely set their rates, and do not determine the terms and conditions of providing their transportation service. The company imposes the itinerary and the driver’s fare is adjusted if this itinerary is not followed. The destination is unknown to the driver, thereby revealing that the driver cannot freely choose the route that suits him/her.
- Is there a subordinate relationship?
The court answers yes, noting that if the driver has declined more than three rides, Uber may temporarily disconnect the driver from its application. In cases where an order cancellation rate is exceeded or if "problematic behaviour" is reported, the driver may lose access to his/her account.
Lastly, the driver participates in an organized transportation service for which Uber unilaterally determines its terms and conditions.
Consequently, economic dependency is not sufficient but criteria are closely intertwined and it makes it difficult to distinguish one from another.
This decision takes place in a wider context where French government is trying to promote a specific status for platform workers through the unilateral setting up by platforms of charters organizing the rights and obligations of workers. Should such charter be approved by labor authorities the law3 ruled that it could not be considered as creating a subordinate relationship.
However, the French Constitutional court overturned this part of the law4 and considered that defining the elements of a self-employed relationship and hence the absence of an employment contract falls in the scope of the law, not unilateral charters. It also referred to the role of the judge in assessing the existence of a subordinate relationship.
The decision of the Cour de Cassation is in continuation of the decision of the Constitutional Court and, in the absence of legal definition, gives two definitions of self-employed status and employment contract allowing the judge to fulfil his role of control.