Actance Tribune

What's NEW under French Employment Law?

N° 5 – May 9th, 2022

DELIVEROO fined €375,000 for concealed work

In France, most delivery people working on behalf of digital platforms (Uber, Deliveroo etc.) do not have employee status: they are self-employed (they must pay social contributions themselves). 

Since the emergence of digital platforms (Uber, Deliveroo etc.), the question has arisen of the legal status of workers linked to these platforms. Several French courts, including the Court of Cassation, now recognise platform workers as employees, thus allowing them to benefit from better protection (application of Labour laws).

In this respect, a French criminal court considers, under the terms of a judgment dated April 19, 2022, that the Deliveroo meal delivery platform had deliverers work under legal subordination between 2015 and 2017 and so they should be considered as employees.

More specifically, the Court highlights the fact that there was a subordination relationship making it possible to recognise the existence of an employment contract between Deliveroo and the deliverers, characterised specifically by:

  • A management power (initial training and compulsory clothing for deliverers, a series of delivery rules for deliverers);
  • A control power (no choice of working days and hours, geolocation);
  • A sanction power (warning, tariff deduction and demotion).

The DELIVEROO Company has thus been sentenced to a fine totalling €375,000 for concealed work. Moreover, three former directors were sentenced to suspended prison terms ranging from four to twelve months. Finally, the defendants must also compensate the delivery people, the unions acting as civil parties as well as the French organism for collecting contributions (URSSAF).

This judgment is subject to appeal.

This is the first criminal conviction in France concerning the status of workers on digital platforms.

Faced with this observation, the legislator has defined the status of these platform workers, given that the law of August 8, 2016, codified in articles L.7341-1 of the Labour Code (access to vocational training and work accident coverage, trade union formation, striking rights, etc.).

Finally, an ordinance published in the Official Journal on April 7, 2022 set the terms for the representation by trade union organisations for these platforms, collective negotiation (with mandatory negotiation topics) while adding new rights for these workers.

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Protected employee status

Because of their role as spokespersons for employees and the defence of their interests, employees elected to represent others (at the Social and Economic Committee for example) but also employees designated in a trade union mandate benefit from a “protected employee” derogatory status.

As part of the employment relationship, this status has several distinctive features that the employer must take into account. Indeed, they can neither impose a modification of the employment contract, nor even a simple change of the working conditions without the agreement of the protected employee. Failing this, the employer exposes themselves to a request for judicial termination of the employment contract or a breach of their contract for which they are exclusively liable.

This status provides even more protection upon termination of the employment contract. Indeed, it requires the employer to respect a procedure during which they must consult the Social and Economic Committee on the dismissal project and then seek prior authorisation for dismissal from the labour inspector. Should the inspector refuse to authorise the dismissal, the employer can then challenge this decision before the administrative judge. Should the employer take the risk of notifying the dismissal without having prior authorisation, the protected employee can obtain nullify their dismissal in court and, should they so request, obtain their reinstatement within the company. If they are not reinstated, the protected employee can benefit from a compensation which is not limited by the « Macron scale ».

The procedure for requesting authorisation from the labour inspector imposes stricter requirements on both the form and the substance of the dismissal. Concerning the form, the inspector ensures that the employer has fully complied with the procedure while, concerning substance, obtaining dismissal authorisation requires a particularly solid reason for dismissal.

Failing to obtain dismissal authorisation, note that the employer could, in return, be accused of trade union discrimination or psychological harassment for having attempted to dismiss the protected employee.

Consequently, in this matter, a protected employee status rhymes with vigilance.

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The transfer of the employment contract

The transfer of business is derived from European Community law and specifically from Council Directive 77/187/EC of February 14, 1977 as amended by Directive 2001/23/EC of March 12, 2001.

Should there be a change in the legal situation of the employer, in particular by sale or merger, the Labour Code establishes a mechanism for transferring employment contracts to the new employer. The list of situations referred to in Article L. 1224-1 is not exhaustive and these rules apply to a multitude of situations involving a change of employer (hiring-management, change of service provider, outsourcing of an activity, etc.).

This rule, established by Article L. 1224-1 (formerly Article L.122-12), is public policy such that the Parties to the transaction cannot deviate from its application by any agreement.

Case law has clarified the conditions of application of the rules governing the transfer of employment contracts to the new employer: there is a transfer when the operation relates to an autonomous economic entity which retains its identity and continues its activity. The autonomous economic entity is characterised by specific tangible (materials, equipment, premises) and intangible (customers, patents, licenses) resources as well as by its own personnel.

The application of article L. 1224-1 of the Labour Code entails the transfer of all employment contracts in progress, whatever their nature (Permanent contract, fixed-term contract, apprenticeship contract, etc.) and the examination of applicable collective agreements with the former employer.

Finally, the Social and Economic Committee must be informed and consulted prior to the beginning of the employment contract transfer operation.

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