While VTC drivers are mobilizing for better status and improvement of their working conditions, where does the law stand? If judgments, in France and abroad, have already made it possible to bring their situation closer to salaried employment, everything is not yet certain for Uberized workers.
In recent days, snail operations and strikes by VTC drivers have multiplied. For them, it is a question of denouncing commissions considered abusive and of demanding better remuneration and supervision of the number of drivers in order to regulate the activity.
These mobilizations occur in a context where wage employment is being undermined by the galloping Uberization of jobs, which contributes to a great precariousness of employees of platforms such as Uber, Deliveroo or Lyft. In 2022, there were 230,000 active digital platform workers in France, including 179,200 two-wheel delivery drivers and 52,700 chauffeur-driven transport car (VTC) drivers.
In 2022, 3% of Europeans reported working on a digital platform in the past 12 months. 28 million jobs would be affected, of which only 7% are salaried, compared to 93% self-employed. These workers perform tasks for clients with whom they are connected via a digital platform.
If these workers can opt for different statuses, it is that of micro-entrepreneur which is the most widely used, because it is simpler and more flexible. Moreover, in France, the number of micro-entrepreneurs has jumped. At the end of June 2023, the Urssaf network counted 2.7 million administratively active self-employed people, or 215,000 more over one year (+8.6%). This comes after a slowdown observed since the third quarter of 2021 (+12.0% year-on-year at the end of June 2022) given the sustained pace of write-offs. A Senate report also indicates:
“The very flexible status of self-employed and then of micro-entrepreneur may have created a gap into which the platforms have rushed to free themselves from the constraints linked to employment. »
On the border of hidden work, platform workers suffer both a precariousness of their rights and repetitive and thankless tasks, comparable to “micro-work”.
The necessary protection of platform workers
The functioning of the platforms questions the link that unites them to workers and the possible subordination that is put in place. To avoid an imbalance in workers' rights, the legal framework, both in France and in Europe, is increasingly moving towards protecting these workers and aiming to organize a presumption of employment. Salary employment indeed offers much more protective social rights than self-employed status.
Thus, in Spain, from 2018 and for the first time in Europe, a court reclassified Deliveroo workers as employees and, on August 12, 2021, the “Riders” law automatically presumed employees to be employees of all platform couriers in Spain.
In France, the Court of Cassation also ruled in 2018 on the contractual relations existing between couriers and the Take Eat Easy platform, considering that there is a link of subordination. She notes that geolocation goes beyond simple connection and that delays in deliveries are sanctioned by the platform.
Likewise, by a decision of March 4, 2020, the Court of Cassation reclassified the relationship of a VTC driver with the company Uber as an employment contract. In this “Uber” judgment, the Court of Cassation noted in particular the impossibility for the driver to establish his own clientele, to freely set his rates and the conditions for carrying out his transport service.
The Paris Court of Appeal went in the same direction in July 2022 by condemning the company Deliveroo for concealed work and acts of moral harassment due to its managerial methods.
On the other hand, other decisions have not been in favor of recognizing the relationship of subordination. In this case, it was held in particular by the judge that the worker was able to disconnect, to carry out shopping on his own behalf, to organize his shopping, and that the geolocation system inherent to the operation of a The purpose of the platform was not to monitor driver activity, but to enable the assignment of the closest driver to the customer.
Towards proportionate control?
There is therefore the desire to evaluate the relationship of subordination through the prism of employee control. The notion of geolocation is particularly enlightening to the extent that such a system is possibly implemented if it is legitimate and proportionate to the desired goal. In the case of Uber, the geolocation imposed by the operation of the platform does not characterize a link of legal subordination of the drivers, because this system is not intended to control the activity of the drivers, but is used to other purposes.
In the 2020 Uber judgment, the Court of Cassation was particularly attentive to a specific clause in the contract which, according to the Court, could lead drivers “to stay connected in the hope of completing a trip and, thus, to keep constantly, for the duration of the connection, at the disposal of the company Uber BV, without really being able to choose freely, as an independent driver would do.” The question of control is then clearly raised. In this judgment, the word control also appears 20 times.
Clarified rights
In France, articles D7342-1 to D7345-27 of the labor code define the social responsibility of platforms towards their workers. Furthermore, Ordinance No. 2022-492 of April 6, 2022 “reinforcing the autonomy of independent workers of mobility platforms, organizing sectoral social dialogue and completing the missions of the Social Relations Authority of the platforms. forms of employment” consolidated the rights of these workers. Thus, it is no longer possible to impose on workers the use of specific materials or equipment (subject to legal or regulatory obligations), and they have the option of using several intermediaries, of determining their route and to choose their activity time slot.
At the European level, the 27 Member States adopted, on October 14, 2024, new rules to strengthen these rights, with the adoption of a directive. This text tends to facilitate the reclassification of workers as employees by determining a legal presumption of employment. This presumption may be invoked by platform workers, their representatives or national authorities in order to denounce classification in “the wrong category”. Conversely, “it will be up to the digital platform to prove the absence of an employment relationship”.
The objective of the directive is also to regulate algorithmic management, so that workers are informed of the use of automated monitoring or decision-making systems in matters of recruitment, remuneration and working conditions.
The fight to defend the rights of platform workers is far from over. Despite a notable evolution in European and national regulations, several questions are likely to continue to fuel the debate: the presumption of employment, social dialogue, control and individual freedoms of these workers outside of employment. Structuring the representation of platform workers with reinforced social dialogue could facilitate the necessary evolution.
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