Are Uber drivers genuinely self-employed?
No, held the French Court of Cassation (the country’s highest court for civil matters) in a landmark ruling yesterday (already available in English translation), confirming the Paris Court of Appeal’s finding that Uber drivers are employees.
The facts will be familiar to anyone who’s been following the rise of the gig economy: according to the platform’s terms and conditions, its ‘driver partners’ are self-employed independent contractors – an assertion which is quickly coming under pressure around the world.
In a powerful decision, the Court of Cassation emphasised the primacy of facts (akin to the Autoclenz doctrine of ‘sham contracting’): contractual documentation and compliance with regulatory regimes are irrelevant when platforms exercise tight algorithmic control. The judgment thoroughly debunks any myths of ‘micro-entrepreneurship’ or contractual freedom, holding that drivers had no choice in determining their client base, terms and conditions, or pay. Crucially, the choice when to log and off was also held to be irrelevant, at least during those hours worked; the ever-present threat of deactivation means that drivers ‘ha[ve] no freedom of choice’.
What does this mean for Uber’s appeal to the Supreme Court, due to be heard this summer? Whilst technically limited to French law, the in-depth analysis of Uber’s business model translates internationally – not least as it’s closely in line with the CJEU’s findings in C-434/14 Elite Taxi. The employment tribunal’s findings are thoroughly vindicated. In analysing Uber’s business model, detailed variations are irrelevant. The tight degree of control exercised in practice trumps contractual and regulatory assertions to the contrary, and the ability to long on and off is a red herring in determining subordination whilst working.
Thanks to Jeremias Adams-Prassl for preparing this case summary.
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