In line with the highly noted decision issued on November 28, 20181 by the Labor Chamber of the Cour de Cassation (French Supreme court) which, as we commented in December 2018, sent a strong signal to the lower courts by recognizing the reclassification of the agreement between a deliverer and a digital platform as an employment contract2, the Paris Court of Appeals held for the first time that the contract binding Uber to one of its drivers ought to be analyzed as an employment contract.
While the Parisian judge had so far been reluctant to recognize a situation of employment between a self-employed worker and a digital platform, he pointed out in a particularly reasoned and detailed decision dated January 10, 20193 that a "sufficient set of clues" existed in this case to establish the existence of a relationship of subordination between the Uber platform and the self-employed driver.
Echoing the recent decision of the Cour de Cassation, the Paris Court of Appeals first recalled that an employment contract presupposes a relationship of subordination, characterized by the combined powers of direction, control and sanction, before specifying that it was up to the judge to analyze the factual circumstances in which the activity is carried out, regardless of the will expressed by the parties or the designation that the parties have given to their agreement.
The Paris Court of Appeals adopted a two-step approach: Relying on Article L. 8221-6 of the French Labor Code, it first demonstrated the absence of independent activity by the Uber driver (1) before establishing the existence of a relationship of subordination with the platform (2).
The Uber driver is not a self-employed worker The Paris Court of Appeals explained that an essential condition of an independent sole proprietorship is "the free choice that its member makes to create or take over it, in addition to mastering the organization of its tasks, its search for customers and suppliers."
In the case at hand, it considered that the Uber driver did not fulfil the conditions required to be considered as a self-employed worker, namely:
The free determination of the conditions for exercising its transport service (entirely governed by Uber, which centralizes and allocates to drivers requests for transport services via algorithms); The creation of an own customer base (Uber prohibits the picking-up of other passengers outside the application system, any contact with passengers at the...