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Gig economy: first setback for a digital platform

For the first time, the French Supreme Court ruled on the nature of the contract between bike delivery men and a platform for establishing contact between restaurants and customers. In accordance with article L. 8221-6, II of the French Labour Code, the French Supreme Court stressed again that an employment contract is characterized each time a subordination link is established between the user and the service provider.

It is on the definition of the subordination link that this decision of 28 November 2018 is interesting. Indeed, after setting out in a rather classic way that “the subordination link is characterized by the execution of work under the authority of an employer who has the power to give orders and directives, to control its execution and to sanction the misconducts of its subordinate”, the French Supreme Court refers to the evidence that led it to conclude that an employment contract existed between the bike delivery men and the digital platform.

The decision is based on two elements. On the one hand, the fact that the app used by the deliverers was equipped with a geolocation system allowing the platform to track their positions in real time and to record their mileage. On the other hand, the platform had a system of bonuses and maluses characterizing the power of sanction on the deliverers.

Particular attention should therefore be paid to the conditions under which services agreements are performed in order to avoid any type of control over the way in which the service is provided or any bonus system tantamount to a sanctioning power of the principal.

Cass. Soc. 28 November 2018, n°17-20079