The practices of the Californian start-up platform company connecting in 58 countries, a million independent drivers and users/passengers via apps for the transportation of people are under the scrutiny of many jurisdictions. The circumstances and conditions of use of the supposedly independent drivers are at the heart of the debates.
Do these drivers have “autoentrepreneur” independent contractor status? Are they independent contractors in business on their own account in the sense of commercial law with their own organization? True freelance business partners engaged in a balanced provision of service relationship? Or are they dependent workers due to the existence of a genuine subordination link with UBER?
In the United States, a class action was brought against UBER in California and Massachusetts by a group of drivers, challenging the independent contractor status. The financial stake is likely to involve compensation in excess of a billion dollars. In England, a London court has just rendered a decision that is likely to affect the majority of the 40 000 British UBER drivers: notwithstanding the reasoned, sophisticated contractual documentation attempting to illustrate the existence of a pure provision of service relationship between the drivers and UBER, the London Employment Tribunal concluded the existence of a genuine subordination link. This is reflected in the methods of recruitment, training, monitoring of performance of the service, penalties imposed, methods of remuneration, provisions relating to breach of contract, and client management. For the British court, UBER is a transportation services supplier employing workers (and not a simple platform company), and this in spite of appearances.
Knowing that the terms and conditions of use by UBER of drivers do not differ significantly from one country to another, one can legitimately question the outcome of a labour court action brought in France by a driver. It is almost certain that the presumption of independence established by registration in the Trade and Companies register “becomes obsolete” if the driver demonstrates that an employment relationship exists. Indeed, the French labour courts consider that the existence of an employment contract is not determined by the willingness expressed by the parties, nor by the name they have given to their agreement, but by the factual circumstances in which they exercise their activity.
The London Employment Tribunal arrived at the same conclusion in seeking the “true agreement” between the parties through a range of indicia related to the performance of the driver service. If it turns out notably that the driver alone represents the transport organization, that he only has the UBER app or that he derives his principal use from it, reserving almost all of his operations for Uber, then reclassification of the service provision as an employment contract cannot be excluded.
In actual fact, UBER exercises tight control from the moment its drivers are recruited, as to their training, their relationship with clients, the fixing of rates….and it is very likely that, de facto, the drivers have neither the time nor the means necessary to develop their own transportation services.
The London Employment Tribunal highlighted this dependence on UBER which designs the products and manages the marketing of the transportation services: « UBER does not simply sell software, it sells rides. » The English Court has simply called into question what constitutes a platform. In France, a new law (Loi Travail) introduced this concept into the Labor Code, recognizing a special status for independent workers using it. Is it really an obstacle to reclassification of the commercial relationship as an employment contract ? This is doubtful. It is more than likely that it is at best a pure presumption and that the French judge will analyze, as in the past, on a case by case basis, the factual circumstances. In the LeCab case, admittedly prior to publication of the new Law, the Paris Court of Appeal thus dismissed the action brought by a driver on the basis of an in-depth analysis of the signed contractual documents and the facts alleged.
If the risk of reclassification is real, the financial stakes are huge, and could call the new business model into question. The English court only ruled on the rights of the worker with respect to the guaranteed minimum wage and paid leave. The length of the working day and the remuneration for overtime, and compensation in the event of abusive termination of the contract, will also be topics for tomorrow. In France, claims introduced by the Parisian Social Security Authorities (“URSSAF”) against UBER aiming at reclassification have revived a debate the outcome of which may have costly consequences for some platform companies forcing them, where applicable, to modify all or part of their operations.