Platform workers: the European Commission proposes a presumption of employment | White & Case srl

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On December 9, 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 employee status.

State of play in French law

In France, the economic model of digital platforms is mainly based on the employment of freelancers. In this respect, it should be noted that pursuant to Article L. 8221-6 of the 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 independent worker of a platform is considered as a non-employee.

However, the self-employed worker can reverse this presumption of non-employee, if he manages to prove the existence of a link of subordination with the platform. He may obtain the requalification of his contract for the provision of services into an employment contract, if he is able to demonstrate that he has received orders and instructions from the platform, and that the latter has been able to control the execution of his his work, and, if necessary, sanction him in the event of a breach of his contractual obligations.

Such requalifications have recently been made in the Take Eat Easy and Uber case

In the first case, the French Court of Cassation (Court of Cassation) considered that the freedom of the worker was illusory insofar as (i) the mobile application was equipped with a tracking system making it possible to follow the worker in real time and to record the number of kilometers traveled by the latter, and (ii) delays in deliveries could result in loss of compensation or even deactivation of the courier’s account beyond several delays.

In the second case, the French Court of Cassation (Court of Cassation) confirmed the existence of a relationship of subordination after finding that the drivers were not informed of the customer’s destination when they accepted the ride, that the prices were imposed by the platform and that the latter could penalize drivers if they refused a certain number of rides or if their ratings were too low. In addition, the Court of Cassation noted that the drivers could not in any case constitute their own clientele.

That said, the recognition of the employee status of platform workers is still exceptional in French case law.

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

The proposed directive targets digital platforms that provide a merchant service:

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

All digital platforms offering services provided 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 proposed directive established a list of five criteria to determine whether the platform should be considered 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 recipient of the service or performance of the work;

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

  • The platform effectively restricts, including through sanctions, the freedom to organize one’s work, in particular the freedom to choose one’s working hours or periods of absence, to accept or refuse tasks or to use subcontractors. contractors or substitutes;

  • The platform effectively restricts the ability to build a customer base or provide services to 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 status of employee (in particular in terms of minimum wage, paid leave, working time, insurance health and welfare, etc.).

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

Next steps

The proposed 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 forthcoming debates.

In any case, once the directive has been adopted, the Member States of the European Union will have a deadline (generally set at two years) to transpose it into national law. However, local courts, particularly in France, could take inspiration from the criteria set out in the directive to process a request for requalification of an employment contract between a self-employed worker and a platform.

Download the PDF ‘Platform workers: the European Commission proposes a presumption of employment’ in English

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