The French Court of Cassation (‘the Court’) has ruled that Uber drivers are employees and not independent contractors in a decision which grapples with some of the key issues in the Uber v Aslam case due to be heard by the UK Supreme Court in July 2020.
Although limited to French law (in which individuals are either employees or not – there is no category of ‘worker’), the fundamental argument here was similar to that of the UK litigation: that the contractual position did not reflect the reality of the situation.
The Court’s focus was on the ‘legal subordination’ of the Uber drivers – in other words the degree of control Uber had – and placed weight on the fact that Uber could sanction drivers, unilaterally imposed terms and conditions and the platform was ‘set up and entirely organised by Uber’.
The Court also found that the fact that drivers could pick and choose when to work did not undermine the fact that there was an employment relationship whilst the drivers were actually working. This is also a point of contention in the UK litigation (albeit in the context of worker status rather than employee).
In coming to their decision the Court also undertook an in-depth analysis of how the Uber app manages its drivers, which applies equally to the UK, and its findings appear to corroborate that of the Employment Tribunal (‘ET’) in the UK when the Uber case was first litigated. It is worth noting that the latter judgment took a particularly dim view of Uber’s attempts to render their drivers self-employed.
So, whilst not directly applicable to UK law, the Court tackled core issues present in the UK litigation and found in favour of the drivers for similar reasons as the ET, Employment Appeal Tribunal and Court of Appeal did in the UK.
Whether the Supreme Court will take a different view is currently a matter of speculation, but this case will likely gain its attention – particularly in relation to the inner workings of Uber’s algorithms and how they impart control upon its drivers.