Employment Status in the Gig Economy Global 2020 NRF Publication – France

What is the state of law on the status of gig workers today?

In France, the business model of gig economy platforms is based on the assumption that the individual is self-employed.

This distinction between the status of employee and self-employed service provider is fundamental from a legal perspective and often gives rise to disputes. The distinction is important in particular with regard to the strict employment law rules that exist in France, such as working time restrictions and protection on termination, as well as the employer’s liability for social security contributions (employers must make these payments only for employees but not for self-employed workers) and the eventual entitlement to unemployment benefits after termination.

As is the case in several countries, case law has established that in determining the employment status, courts must look at the substance of the relationship rather than any labels that the parties have given to that relationship. A number of factors will be reviewed such as the extent of the integration of the worker within the company’s operations, the equipment provided and the level of control exercised by the company.

What are the grey areas in the law?

This distinction between employee and self-employed has evolved through case law and so, in making a determination, will very much depend on the facts of each case.

There have been numerous cases before the courts over recent years but these have given mixed results both before the courts of first instance and at the court of appeal level.

A new law was passed in 2017 granting some minimal rights for the individuals providing services through a digital platform, such as the obligation for the company to pay for work-related accident insurance cover, some sparse obligations to cover the financial cost of professional training and the right to strike and to constitute a trade union.

However the French Parliament decided not to seek to legislate on the status of such individuals, arguing that it was up to the employment courts to apply the case law to determine whether such individuals were employees or not based on the facts of the case.

An attempt was made in 2019, through a new law, to allow platforms to set up their own social policy or charter determining the individuals’ rights and obligations. However, the proposed provision of the law was held to be invalid by the Constitutional Court on the basis that the courts should have the power to qualify the individual as an employee. A recent Decree published in October 2020 provides the authorisation of such charters by the labour employment administration but does not introduce any new rules on determining the status of the individuals.

Despite the general view that these individuals are generally self-employed, on November 28, 2018, the Supreme Court decided that a rider was an employee with a company using a platform and an application to connect partner restaurants, customers and riders, on the basis that the application used a geo-location system enabling the monitoring in real time of the rider’s position and the recording of the total number of kilometres travelled and that the company had the power to sanction the rider by a system of penalties which could even lead to the exclusion of the rider.

In a further case of March 4, 2020, the Supreme Court decided that a driver had the status of employee, notably because he was not able to develop his own clients and could not freely fix the price of his services.

What legal developments are expected in the future?

In light of the recent Supreme Court decisions and of the EU Directive on transparent and predictable working conditions (Directive 2019/1152), which Member States have until August 1, 2022 to transpose into national law, the government is working on a law, the timing and content of which remain uncertain.