Author: Florence Bacquet
Two recent court decisions, one criminal, the other civil, discussed subordination link, and thus employment for platform workers
- Companies may be held criminally liable for subverting the essence of independent work
The Paris criminal court of first instance ruled, on the 19th of April 2022, that Deliveroo, an online food delivery service, was criminally liable for the offense of “travail dissimulé”, which is akin to undeclared work.
The company was sentenced to pay a 375 000 Euro fine, which is the maximum amount for such an offense, and had to post the decision on its website for a month. Three of its former executives were handed out suspended prison sentences ranging from 4 to 12 months and ordered to pay fines ranging from 10 000 to 30 000 Euros. Unions, social security organisms and the workers themselves also received various sums of money pursuant to the ruling.
In its decision, the court asserted that there was nothing independent about the way in which Deliveroo workers carried out their tasks from 2015 to 2017. Well to the contrary, the judges found that the relationship between the parties was one of subordination (“lien de subordination”). Under French law, where such a relationship exists, an employment contract follows.
According to the criminal court, all applicable criterion led to the conclusion that the commercial agreements that were entered into with thousands of independent workers were in fact employment contracts as the company:
- exercised control over the workers (who had to undergo training, whose days off were not freely chosen, who could not change which zone they logged onto the website from of their own accord…),
- monitored their work (via geo-tracking, performance statistics…),
- could take disciplinary action against them (fares could be deducted, the contract could be terminated in case of repeated absence…),
- and had every intention not to comply with legal provisions. In this respect, an internal document instructing workers on what to say or do in order to not be regarded as employees was instrumental in the criminal court’s decision.
Digital labour platform workers may not claim that an employment contract exists where there is no subordination relationship between the parties
In a decision rendered on the 13th of April 2022 (only a few days prior to that which is mentioned above) the French judicial Supreme Court held that there was no employment contract in the case of a driver working as an independent contractor for a transportation digital labour platform now named LeCab.
The Paris Court of Appeal found in the driver’s favour, but the labour section of the judicial Supreme Court deemed that the elements he invoked were insufficient to establish the existence of an employment contract. It was held that there was no subordination relationship despite:
- the existence of a geo-tracking system to locate each vehicle in real time,
- the fact that the company could, so to speak, discipline the workers via the implementation of client ratings,
- the unilateral determination of trip fares by the company depending on the time of day,
- the fact that the driver had no choice but to rent a vehicle, etc.
The judiciary Supreme Court had previously – and infamously – found that individuals working through the digital labour platforms Take Eat Easy and Uber were not in a contractual relationship but in one of employment because there was a “subordination link” between the parties.
Key Action Points for Human Resources and In-house Counsel
This new decision serves as a reminder of the fact that independent workers’ contracts will not automatically be construed as employment contracts: the existence – or lack thereof – of an employment contract between workers and digital labour platforms is a case-by-case question that cannot be resolved in the abstract.