Platform workers: The European Commission proposes a presumption of employment

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On 9 December 2021, the European Commission presented a proposal for a directive aimed at harmonizing the legal status of platform workers in the European Union, in particular by establishing a presumption of salaried status.


State of play in French law

In France, the business model of digital platforms is mainly based on the employment of self-employed workers. In this regard, it should be noted that pursuant to Article L. 8221-6 of the French Labor Code, natural persons registered in the Trade and Companies Register (RCS) are presumed not to be hired under an employment contract. In other words, the self-employed worker of a platform is deemed a non-employee. 

However, the self-employed worker can overturn this presumption of non-salaried status, if he/she manages to prove the existence of a subordination relationship with the platform. He/she could obtain the recharacterisation of his/her service contract into an employment contract, if he/she is able to demonstrate that he/she received orders and instructions from the platform, and that the latter was able to monitor the performance of his/her work, and if necessary, sanction him/her in case of breach of his/her contractual obligations. 

Such recharacterisations were recently made in the Take Eat Easy and Uber cases

In the first case, the French Supreme Court (Cour de cassation) considered that the worker’s freedom was illusory in so far as (i) the mobile application was equipped with a tracking system allowing the worker to be followed in real time and the number of kilometers traveled by the latter to be recorded, and (ii) delays in deliveries were able to result in a loss of compensation or even in the deactivation of the courier’s account beyond several delays. 

In the second case, the French Supreme Court (Cour de cassation) upheld the existence of a subordination relationship after finding that the drivers were not informed about the costumer’s destination at the time they accepted the ride, that the rates were imposed by the platform, and that the latter was able to penalise drivers if they refused a certain number of rides or if their ratings were too low. Moreover, the French Supreme Court noted that the drivers could under no circumstances build up their own clientele. 

This being said, the recognition of the employee status of platform workers still remains exceptional in French case law. 


The status of an employee recognised as a platform worker by the proposed directive 

The proposal for a directive targets digital platforms that provide a commercial service:

  • At least in part, electronically, by means of a website or mobile application;
  • At the request of the recipient of the service;
  • Involving, as a necessary and essential element, the organisation of work carried out by individuals, whether carried out online or in a specific place.

All digital platforms offering services performed by workers are therefore likely to be affected by this European directive. 

The main contribution of the proposal is the recognition of a presumption of salaried status for platform workers. 

In this regard, the proposal for a directive established a list of five criteria to determine whether the platform should be considered as an employer:

  •  The platform sets the level of remuneration;

  • The platform requires the worker to comply with specific binding rules regarding appearance, behavior towards the service recipient or performance of the work;

  • The platform supervises the execution of the work or verifies the quality of the work results, including by electronic means;

  •  The platform effectively restricts, including through sanctions, the freedom to organise its work, in particular the freedom to choose working hours or periods of absence, to accept or refuse tasks or to use subcontractors or substitutes;

  • The platform effectively restricts the ability to build up a clientele or provide services for a third party.

If the platform meets at least two of these five criteria, it is legally presumed to be an employer and the workers of this platform must benefit from the rights attached to the employee status (in particular in terms of minimum wage, paid holidays, working time, health and contingency insurances, etc.). 

The platform would nevertheless be entitled to challenge this qualification, provided that it can prove that its workers are performing a work service in complete independence. 


Next steps

The proposal for a directive must now be examined by the European Parliament and the European Council. 

It is therefore very likely that its content will evolve during the coming debates. 

In any case, once the directive is adopted, the European Union Member States will have a period of time (usually set at two years) to transpose it into domestic law. However, local courts, particularly French courts, could be inspired by the criteria laid down by the directive when dealing with a request for recharacterisation of an employment contract between a self-employed worker and a platform.

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