A recent decision issued in France indicates that whether a gig worker is an independent contractor or employee is a fact-specific inquiry.

In this case decided last month, delivery platform Stuart, a subsidiary of the group La Poste, was prosecuted under French employment law for having employed deliverers as independent contractors, when, according to the prosecution, they were in fact employees (who should have worked under an employment contract).

The main argument from the prosecution to support its claim for “concealed work” was that Stuart should have hired the workers under employment contracts because there was a subordinate relationship between the platform and the worker. For instance, Stuart required that the workers comply with a specific dress code, were forbidden to take the subway to proceed with deliveries, were required to have a charged phone with full battery power to carry out the deliveries, etc. The prosecution claimed that these strict rules and guidelines on how to perform the work demonstrated a subordinate relationship and lack of independence for workers, which indicated they were not independent workers.

In response, Stuart claimed that, unlike platforms that connect a private individual customer and a deliverer, Stuart is used by professional customers, such as franchise restaurants, to have their own products delivered to customers.

It also claimed that the platform guarantees the independence of the deliverers thanks to the "free" mode of the application, which allows independent contractors to choose their working area and schedules.

Only eight deliverers were heard during the proceedings and most of them declared that they had never been subject to any disciplinary measure by the platform nor considered themselves as subordinates, which led the court to release Stuart for the charge of concealed work.

According to the court, the deliverers’ obligation to conduct themselves respectfully towards customers and respect a dress code does not constitute proof of a subordinate relationship between the platform and its deliverers. The prohibition to take the subway and the obligation to have a charged phone to carry out the deliveries, were necessary to the functioning of the platform and did not jeopardize the independence of workers. Also determinant in this case is the fact that several deliverers testified that they had not been subject to disciplinary measures and considered themselves independent contractors.

The Stuart decision rendered on January 12, 2023, is contrary to those issued in other well-known cases where the French judges admitted the existence of an employment contract. This confirms that French judges determine on a case-by-case basis whether there is an employment relationship between the worker and the platform.

What can gig platforms learn from this case?

We expect more rulings on this topic as more and more independent workers, who consider that they should have been hired as employees, decide to go to court to claim compensation for their purported misclassification.

In order to mitigate the risk of being assessed high penalties, gig firms should make sure that the deliverers are not subject to a subordinate relationship.

Platforms should ensure that their workers perform their work independently, are able to have their own customers, and try to limit as much as possible the authority and the level of subordination towards the platform worker. The instructions given should be limited only to those necessary for the proper functioning of the service (such as wearing a work uniform, acting respectfully towards the clients or having a charged phone during deliveries) without jeopardizing the independence of the worker.

Platforms should also avoid giving specific instructions (directions, working hours, prices, etc.), monitoring too closely the performance of the contract, and taking disciplinary measures against the worker.

The tricky part is finding the right balance between applying high-quality standards and guidelines to the workers to ensure consistency in the services provided to customers, and not exercising excessive control over the workers to avoid creating a subordinate relationship.

All gig firms should learn from this case and remain vigilant while drafting their workers policies.

*Claire Dufils is a lawyer with Littler France.