Laurent Gamet is a lawyer specializing in labor law, associate at Factorhy Avocats, professor of law at the University of Paris-Est and dean of the Faculty of Law. What does this notion of “link of subordination” mean in the world of work? Especially in the Deliveroo case where the company has just been fined for “hidden work”.
franceinfo: How to define this relationship of subordination which exists in any employment contract between the employer and the employee ?
Laurent Gamet: It is case law that defines subordination, and in particular a landmark decision of the Court of Cassation which says that subordination is made up of three elements: the power to give orders and directives, the power to control and the power to sanction. And if there are these three elements, then there is subordination of the worker vis-à-vis the one who is then called the employer.
In this Deliveroo case, what are the elements that proved the relationship of subordination?
The judges said that there was power of direction, because they are the ones who direct the performance of work, who provide the work clothes, there is power of control in particular over geolocation data and there is power to sanction because warnings could be given to workers who did not respect the rules, which could go as far as demotions and even termination of the contract.
When a relationship of subordination is proven what does that entail as consequences?
It takes everything, because French law is all or nothing. Everything, if you are an employee, nothing, if you are not an employee. If you are an employee, it takes all labor law and social security law, when you are an employee you are better protected than when you are self-employed. The self-employed person is not entitled to labor law and is not entitled to social security for employees.
Must there be subordination for there to be an employment contract?
There are quite marginal hypotheses where there can be an employment contract without subordination, but we can retain that overall there is an employment contract if there is subordination.
What does the relationship of subordination impose on the employee?
An employee is a subordinate to his employer, he must therefore obey the orders of the employer and if he does not do so he is liable to a sanction. This can be a warning, layoff, demotion or dismissal. The sanction is specific to the salaried employment contract. It is both the consequence of the relationship of subordination, but it is also a criterion which makes it possible to say that there is an employment contract.
What are the rewards for the employee?
He is entitled to labor law and social security and it is a demand of those who work to be recognized as employees in order to have this protection.
Dismissing the existence of a relationship of subordination is criminal…
Here, it is effectively the criminal court which rules in the Deliveroo case, because not considering an employee when he is, it is an offence, it is the offense of concealed work, which is punishable by imprisonment and a fine. The Deliveroo meal delivery platform was fined 375,000 euros, and two former leaders to a one-year suspended prison sentence.