the Court of Cassation says “no” … for this period

A new decision has recently been made regarding the relationship between digital platforms and self-employed workers: the Court of Cassation has refused to classify the employment relationship linking “Le Cab” as platform of one of its drivers under a job. Looking back at this decision and the context in which it occurred.

A new application of jurisprudential procedure set of indicators »

Following its “Take Eat Easy” ruling on November 18, 2018 (1) in relation to people delivering home, the Court of Cassation ruled on the status of VTC drivers by reclassifying their relationship with work on the Uber platform as service contracts. on March 4, 2020 (2).

In a judgment of April 13, 2022 (n ° 20-14.870), the Court of Cassation analyzed the employment relationship between the drivers of VTC and the digital platform “Le Cab”, operated by a company concluding lease contracts for the vehicles and its membership. drivers.

Not surprisingly, it has implemented its well-established approach for reclassifying a self-employed worker’s employment relationship with his or her client as an employment contract.

The Court relied on Article L.8221-6 of the Labor Code, under which a self-employed worker is presumed to be non-employee, unless there is proof of the existence of a subordination relationship described by the power to issue instructions. , to monitor its implementation and the punishment of violations. This relationship of subordination is examined according to the method of “ set of indicators “.

In the present case, the indications known to the Court of Appeals are as follows:

    • the lack of freedom of drivers to choose their vehicle;
    • the interdependence between the car rental contract and the platform membership contract;
    • the possibility for the customer to geolocate drivers in real time, in order to distribute trips in an efficient and effective manner;
    • the permanent control of driver activity by fixing the cost of principal trips, the later establishment of invoices in the name and for drivers and the ability to change the price of trips up or down depending on the schedule;
    • a power of punishment described by the rating system of drivers to passengers.

The Court of Appeals considered this set of evidence sufficient to describe an employment contract. The Court of Cassation overturned this decision on the basis that these indices did not qualify for a membership relationship.

… resulting in the loss of character of a subordination relationship between the VTC driver and the platform

According to the Court of Cassation, the Court of Appeal does not describe the use of work within a service organized according to conditions determined unilaterally by the principal, and therefore a relationship of subordination, to what it does not show that it teaching party ” sends directives to the driver on the procedures for doing the work, that he has the power to monitor its compliance and to allow non -compliance with it. “.

At first glance, it is tempting to think that the Court of Cassation will revert to the law in the case on March 4, 2020: some indications are reminiscent of the Uber judge’s findings concluding with an employment contract (lack of choice) setting the price of races for example) and the Court of Appeals clearly demonstrates a power to control and authorize the principal exercised by the VTC driver.

In fact, it is more than an assessment of the strict facts of the case that the Court of Cassation sanctioned.

In fact, for this, none of the elements held by the Court of Appeal, including the control of the driver’s activity platform by geolocation, make it possible to establish the existence of the directives issued by the relevant platform. in ” of methods of doing work “.

Similarly, a passenger rating system could be a penalty for a VTC driver with a negative mark. However, the designating party has no control over this rating, which cannot itself be a penalty imposed later for the driver’s failure to follow the directives he gave him (he will differ if the platform adopts the step.in response to this rating).

The High Court therefore placed limitations on the recognition of powers of direction, control and punishment that could lead to the reclassification of the contractual relationship as an employment contract.

These three powers must demonstrate the true legal subordination of the self -employed to the principal who takes direct measures in his or her attention that affect the performance of the work.

This decision should be welcomed in that it is borne in mind that the existence of a link to legal subordination is based on a set of value indices ” in concrete terms “, with little evidence of Uber’s verdict.

A decision given in the context of creating an environment for platform workers

If the decision on April 13, 2022 becomes “ assures for some platforms, this once again highlights all the legal uncertainties surrounding the employment relationship between freelancers and digital platforms.

It is even more damaging that social jurisprudence changes as it influences other things.

Thus, the Court of Cassation recently acknowledged that the qualification of the employment relationship between a platform and VTC drivers in an employment contract will find action for unfair competition brought against the platform of a company conducting the same activity (3).

Also, this qualification puts a criminal risk of undercover employment for the platform, as qualified by the Paris Criminal Court in a ruling on April 19, 2022 regarding Deliveroo’s food delivery platform.

The legislation, in part, is likely to be strengthened: the “Employment” law of 2016 (4) first introduces a “ social responsibility »Platforms about concerned workers.

An ordinance on April 21, 2021 – approved by a law on February 7, 2022 (5) – then initiated a process of representing self -employed workers on the platforms. This same law provides that the government can set by ordinance new obligations for platforms in relation to VTC drivers/carriers of independent goods, ” to strengthen the autonomy of the latter in the exercise of their activity “.

This is the purpose of an ordinance of April 6, 2022 (6) to strengthen the independence of these workers by:

    • setting up platforms to inform them of the destination of the service and give them ample time to accept it or not;
    • prohibiting platforms from imposing on them the use of material or equipment (subject to legal and regulatory obligations);
    • to remember that they have a choice of their activity time slots, where they can disconnect, and of their periods of inactivity, that they are not limited to just one platform and are free to choose their route with respect to the particular situation in traffic, the route suggestion. on the platform and customer choice is possible.

A bill to approve this ordinance was filed before Parliament on April 20, 2022. These rules could also be expanded in light of a new draft European directive intended to improve working conditions of the people involved in the platforms

The underlying goal is to limit the indicators that may indicate the existence of a subordination relationship, and therefore of an employment contract, between these workers and the platforms. But because of the similarity of legal texts and case law on the subject, this purpose is currently uncertain.

(1) Cass. Si Soc. 18 November 2018, n ° 17-20 .079

(2) Cass. Si Soc. March 4, 2020, n ° 19-13.316

(3) Cass. Si Com. Jan. 12, 2022, n ° 20-11.139

(4) Law no. 2016-1088 of 8 August 2016 work-related, the modernization of social dialogue and the assurance of professional careers (OJ August 9).

(5) Law No. 2022-139 of February 7, 2022 approving Ordinance No. 2021-484 on April 21, 2021 (OJ Feb. 8)

(6) Ordinance No. 2022-492 of April 6, 2022 strengthening the autonomy of self-employed workers on mobility platforms, organizing social dialogue in the sector and increasing the missions of the Employment Platforms Social Relations Authority

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