Employee or self-employed, a boundary drawn by the courts

In French law, an employment contract is recognised by the relationship of subordination. A ruling of the Court of Cassation, France's highest civil court, of 13 November 1996 defines it as the performance of work under the authority of an employer who has the power to give orders, to monitor their execution and to sanction failures.

The same ruling accepts that working within an organised service can be an indication of subordination where the employer unilaterally sets its conditions. Classification is therefore based on a set of indications, assessed case by case.

The French Labour Code presumes that people registered as self-employed are not bound by an employment contract. This presumption, laid down in Article L. 8221-6, falls when it is established that the activity is carried out in a relationship of permanent subordination.

The principle is settled: the label chosen by the parties does not bind the judge. The judge examines the actual conditions of the work, which explains why the same activity may be classified differently depending on how it is organised.

The social chamber of the Court of Cassation reclassified as an employment contract the relationship between a courier and the Take Eat Easy platform in November 2018, then that between a driver and Uber in March 2020. In both cases it found a power of direction, control and sanction.

These decisions concern individual situations and do not entail a general classification of everyone who works through a platform. Other cases have reached different conclusions, for lack of sufficient indications.

Several countries have created statuses lying between the two poles. British law distinguishes the employee, the “worker” and the self-employed, and the Supreme Court of the United Kingdom placed Uber drivers in the second category in 2021. Spain and Italy also have forms of economically dependent self-employment.

Supporters of these categories see them as protection suited to hybrid situations. Their critics note that a third box creates two boundaries to police instead of one, and that it can absorb people who would otherwise count as employees.

A European Union directive on platform work adopted in 2024 provides for a presumption of employment where facts indicating control and direction are established. It leaves it to the member states to specify the arrangements when transposing it.

The debate now concerns the burden of proof more than the criteria themselves, which remain close to those developed by national courts.

Statistics do not follow this litigation. They classify people according to the status declared in surveys or registered with social security bodies, not according to a legal classification that only a judge can establish case by case.