The Challenges Ahead For GIG Economy Platforms In Europe Increase As The Labor Courts' Scrutiny Intensifies

Further to the reclassification of the service agreement between an independent deliveryman and Deliveroo, ordered by a Spanish lower Court, French jurisdictions recently shifted position, considering that several independent workers should be deemed employees of the platform that they were working for.

1. Recent French case law

   1.1. In France, this new trend was originated by a French Supreme Court's decision dated 28 November 2018, concerning the meal delivery platform, Take Eat Easy.

   In this case, both the Labor Tribunal and the Court of Appeal had rejected the deliveryman's claim to have his service agreement reclassified as an employment contract. Judges considered that the independent contractor was free to choose when he wanted to work and considered that the bonus-malus system applied by Take Eat Easy was not sufficient to characterize the alleged subordinate relationship.

   The Supreme Court judges reversed the Paris Court of Appeal's ruling :

   (i) They recalled the following principles:

   The existence of an employment relationship depends neither on the intentions expressed by the parties, nor on the qualification they have given to their agreement, but on the factual conditions in which the activity is carried out, and A subordinate relationship between parties is defined as the performance of work under the authority of an employer who has the power to give orders and directives, to control their performance and to sanction the breaches of its subordinates. (ii) In light of these, they observed that :

   Firstly, Take Eat Easy's application was equipped with a geolocation system enabling the company to track in real time the deliverymen's location and the total amount of kilometers traveled, so that the role of the platform was not limited to connecting the restaurants, the customer and the deliverymen, and Secondly, the company had the power to sanction its deliverymen through a bonus-malus system, and therefore, that Take Eat Easy had the power to give orders to its deliverymen, control their performance and sanction their breaches, characterizing an employment relationship subject to Labor Law. 1.2. Lower courts have already started to abide by this new position.

   Very recently, the Paris Court of Appeal has indeed changed sides and reclassified the service agreement entered into by Uber and one of its driver into an employment contract (Paris Court of Appeal, 10 January 2019), considering that :

   As soon as the driver connected to the...