Napoleon must be turning in his grave.

by French Practice Department

No matter what side of the channel whether North of South of France, Napoleon is generally regarded as having had a rather full and accomplished life. One of his less violent accomplishments was a Napoleonic code which is 1804 passed with a view to give written and accessible law to all citizens and was a major step in replacing the previous patchwork of feudal laws.  At last, one could consult a book about the law which applied to everyone, there was a certain implicitly introduced. Now, of course, the French legal system has morphed into one of the more complex and sometimes quite unpalatable and unfathomable system of laws, decrees, ancillary legislation, rules and procedures. Nowhere is that more obvious than in employment law. Figuring out what is precisely the status of a contracting party appears to be more and more tricky and more and more difficult. Both sides of the Channel, Uber drivers who regarded themselves as independent contractors suddenly found themselves as being employees with of course all the benefits that go with such. In November 2018 a case “Take Eat Easy” court ruled that delivery drivers of Take it Easy, were found to have been in an employment relationship.

Even more recently, in January Uber drivers, no doubt attracted by the basket of benefits to be had as a French employee went to the Paris Court of Appeal. The issue of the case was to decide whether an Uber driver was an employee and therefore protected and with the benefits of French employment law of a freelancer, surprise surprise, following the Take it Easy case law the Paris Court of Appealed that the driver was an employee of Uber.

Now to be registered as an Uber driver the claimant had to obtain a professional driver’s card and register as a freelancer to the French Professional Authorities. After having performed more than 2000 trips for Uber, the drivers Uber account was permanently disabled at the request of Uber management for reasons which are not important here. According to the claimant, however, he was actually an employee of Uber and as such couldn’t be fired from the company this way.

For somebody to be considered an employee under French law, it has to be shown that 1. he was financially compensated, 2. that there was a job to perform, that 3. he was in a subordinate employment relationship, i.e., he took orders from his employer. In the past, the burden of proof to demonstrate the professional subordination was upon the claimant. This has been turned around by showing more than the lack of independence of the driver. Lack of independence is much easier to bring as the driver appears to be subordinated to the Uber app platform, and is therefore considered an employee.

In the decision, the Court pointed out that the driver is forced to register with the French Professional Authorities to become an Uber driver. Besides that, when performing a trip that the Uber platform prohibits Uber drivers to accept, non-Uber passengers, or to directly contact Uber passengers at the end of the trip or to keep any of their details. According to the Court, this, therefore, deprives the drivers of the opportunity to establish contacts and thus develop any personal clientele. In addition, the Court notes that the price is set by Uber without any consultation of the driver. Surprisingly the fact that the driver was able to choose days and hours of work does not in itself exclude a subordinate relationship. 

So is this an isolated case or will it lead to cascading?  Can it lead to tens of thousands of French Uber drivers suddenly finding they are Uber employees with all the benefits such involves?  Are we going to see Uber suddenly finding itself with 20,000 employees?

France has started discussions with online platforms, parliament and trade unions to define a new legal universe adapted to the user’s digital platforms. However, pending this new regulation, it is up to anybody wishing to enter into a commercial relationship with self-employed persons to be extra careful in the contract drafting and performance at the risk of being an employment agreement. Hire smartly, legally.  See a lawyer. Get OLN.

Napoleon as an employer’s armies had a much simpler termination provision.