France : The social chamber of the Cour de cassation requalifies the partnership contract of an Uber driver as an employment contract

Date of decision:

This decision is the second that the social chamber of the Court of Cassation has issued on the subject of platform workers, after the decision in the Take Eat Easy case (Soc., 28 November 2018, pourvoi n° 17-20.079). It rejects an appeal against a decision admitting a request for requalification. The judgment was strongly reasoned, with publication for the first time of a press release in English.

The Court of Cassation analysed the relationship between the drivers and the Uber platform in a very concrete and classic way and concluded that there is a legal subordination relationship when they are connected. The Court of Cassation stated 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 define the conditions under which the service is provided. Conversely, in the context of an employment contract, the subordination link is based on the employer's power to give instructions, to control their execution and to sanction non-compliance with the instructions given (according to the Court's established case law (Soc., 13 Nov. 1996, no. 94-13187, Bull. V no. 386, Société générale). According to the same case law, work within an organised service may constitute an indication of subordination when the employer unilaterally determines the conditions of execution. For the Court of Cassation, the driver who uses the Uber application does not build up his own clientele, does not freely set his rates and does not determine the conditions of performance of his transport service. The route is imposed on him by the company and, if he does not follow it, fare corrections are applied. The destination is not known to the driver, thus revealing that he cannot freely choose the journey that suits him. In addition, if a driver refuses three or more rides, Uber can temporarily disconnect the driver from its application. If the driver exceeds a certain cancellation rate or reports "problematic behaviour", he can lose access to his account. Finally, the driver participates in an organised transport service for which the Uber company unilaterally defines the conditions of exercise.
Thus, for the Court, all these elements characterise the existence of a subordination link between the driver and the Uber company when connecting to the digital platform, his self-employed status being only fictitious. The fact that the driver is not obliged to connect to the platform and that this absence of connection, whatever its duration, does not expose him to any sanction, does not enter into the characterisation of the subordination link.

A driver, after the definitive closure of his account by the company Uber BV, had applied to the labour court in June 2017 for a requalification of the contractual relationship as an employment contract. The Court of Appeal, in a reversal judgment of 10 January 2019, ruled that the partnership contract signed by the driver and Uber BV could be analysed as an employment contract and referred the case back to the industrial tribunal for a decision on the merits of the driver's claims for back pay, back wages, damages for non-compliance with maximum working hours, concealed work and dismissal without real and serious cause. Uber had appealed against the decision of the Paris Court of Appeal.

Digital Platform Observatory

The digital platform observatory is a joint initiative of ETUC, IRES and ASTREES, funded by the European Commission. It brings together trade unionists, experts, activists, specialists of workers representation and collective action in the  platform economy.