Who is the Employer?

Reclassifying Work Relations to Prevent Uberisation

Yesterday, on the 28th of November, 2018, France’s highest court of last resort reclassified the employment status of one of the couriers of the now-defunct Take Eat Easy delivery platform, establishing a link of “exclusive subordination” between the start-up and the courier.

Take Eat Easy (TEE), a Belgian start-up, arrived in Paris in 2014, around the “foodtech” craze period. The platform’s riders were registered as self-employed workers, a neccessary condition to work with TEE — similar to how other platform employers like Uber function. Riders were paid by shift or by race, to which bonuses could be added. That means that they didn’t benefit from any job security or much coverage from social welfare.

In 2016, the start-up was placed in judicial management, then in liquidation due to financial distress. 2500 “workers”, who had signed a contract for services, were essentially “laid off”. As a response, one of the riders had seized a “labour” court (Conseil de Prud’hommes) to ask for a requalification of his contractual relation with TEE to an employment agreement. The Conseil de Prud’hommes, and then the Paris Court of Appeal, declared themselves not competent to rule over the issue because of the fact that “the courier was not linked to the digital platform by any exclusivity or non-competition link as he was free to determine for himself when he wanted to work.”

On the 28th, the Court of Cassation, in a historical ruling, overruled the decision of the lower courts that rejected the courier’s claim. The Court claimed that employment status does not depend on how the parties defined their work relationship, but on the factual conditions in which the working activity was carried out. The decision was based on the fact that the system of geolocation that riders were equiped with allowed the company to monitor in real time the position of the courier and record the total number of kilometres travelled. This, combined with the existence of disciplinary mechanisms, was sufficient to establish employment status.

The reason why this decision is so important is because it paves the way for more comprehensive lawsuits against uberised practices of hiring labour. This decision goes beyond the contractual terms that established workers as self-employed. Suffice to say that businesses that hire self-employed workers — platform workers — don’t have to pay for things like healthcare, retirement pensions, sick leave, or unemployment, leading to widespread abuse.

In analysing the conditions of work, judges moved away from the narrative of the self-employed worker as “CEO of his own freelancing business” that benefits from flexbility in deciding work hours. Judgements like this one are an important step towards enforcing labour laws in a time where the blurring between different jobs types and categories is the norm. Still, the issue of mobile labour and protecting people in those new forms of work is still far from having a definite solution. Ideally, we should look towards developing a mobile safety net for the Digital Age so that workers in mobile jobs shouldn’t have to sacrifice social security for flexibility.