Social right. The Supreme Court in London reclassified, on February 19, 2021, an Uber driver registered as self-employed in “Worker” : a third status, halfway between “employee” and “self-employed”, for so-called “parasubordinate” workers, because they have no room for negotiation, and whose co-contractor is not the client. With specific protection: minimum wage, working time, paid leave, etc. But no sick or maternity leave, no redundancy or unemployment benefits, no funded retirement.
This statute, finer than our employee / self-employed opposition and better corresponding to the situation of these drivers, is however a false good idea in French law, for three reasons.
First, instead of a single already fuzzy border, it would create two, which would have to be redefined by two different judges. : the social judge and the commercial judge, until cassation. Knowing that at the end of the road, the Luxembourg Court could impose its views in the name of Community law.
Second reason: reserving this status only for workers from transport platforms, some of whom are already multi-active (with their own customers, part-time employees), would constitute a new sub-category, creating a distortion of competition with self-employed workers from the same. sector. To limit side effects, this status should therefore be extended to comparable situations.
Finally, the third reason is that it risks destabilizing the wage system, by wanting to confer better social protection on these 180,000 workers who are so special. Indeed, companies could consider moving some of their independent employees to ” workers », Or offer this status to future recruits. What to worry about our general regime, already in bad shape.
Litigation in trompe-l’oeil
The real question posed by the platform economy? First of all, to better protect these high-risk drivers and cyclists (accidents at work are frequent), but with reduced social protection. Labor disputes are therefore a sham here: beyond the creation of a balance of power with the platforms, it is less a question of obtaining an employment contract than the protection of the regime. general and unemployment compensation attached to wage labor, as the Frouin report has shown.
To achieve this, the Court of Cassation therefore reclassifies with enthusiasm. With her Uber stop on March 4, 2020, for example, she imagined a creative employment contract with a “Permanent legal subordination”, where the employer is not required to provide work and the employee to carry out orders. Judgment which, a year later, has not really “made a precedent”: less than four hundred summons to industrial tribunal, and two judgments of important courts of appeal in the opposite direction. This does not automatically translate stark contradictions, the platforms reconfiguring their rules as they go in order to escape the new mesh of the net.
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