France makes a distinction between those individuals with an employment status and independent workers.
Under French employment law, an employee is defined as an individual who works pursuant to an employment contract (and under the subordination of the employing entity) and receives a salary in return for his or her services. Unlike an employee, a consultant remains independent from his or her client and is not subject to the supervision of an employer
The category in which a person falls is of particular importance as in one case, the individual will enjoy all the protection and rights arising from French employment law, which in France are very favorable to employees, while in the other case, (s)he will not benefit from such protection.
This is why, in practice, independent consultants (contractors, freelance individuals) do not hesitate to file claims with French jurisdictions in order to have the relationship requalified as an employer-employee relationship.
Faced with these situations, French case law has enumerated several criteria which permit the determination on a case by case basis of whether an individual is an employee or a contractor, as follows:
- whether the contractor has undertaken to perform a precise task for which he/she has the necessary skills and which does not fall within the competency of the customer;
- whether the contractor is free to organize his/her activity or whether (s)he is under the control and review of the customer (through the receipt of instructions from such entity and by being subject to its control and responsibility);
- whether the contractor performs the services with his/her own equipment or on the client’s premises, using the company‘s equipment;
- whether the contractor is free to work for other companies or whether he is required to work solely for the client customer and on a full time basis;
- how the payment of the consultant is organized (i.e. global payment of fees for the work done, absence of payment during holidays rather than monthly payment with a reference to the time spent by the individuals, absence of benefits such as private health insurance, etc).
Up to the present time in France, only these two totally opposite statuses have coexisted.
However, with the evolution of the economic environment and with the emergence of new economic models, such as Uber, Deliveroo, etc., we anticipate changes, with potentially the creation of a new intermediary status which would permit avoiding application of the full spectrum of French employment law to some categories of independent workers, thus enabling them to maintain their independent status while giving them a minimum level of protection. Recent legislation has already started to move in this direction and independent workers working for electronic platforms have already been granted some rights / benefits, as follows: right of strike, protection against industrial accidents, professional training.
This topic is therefore to be followed with attention in the coming months / years, as changes continue to be expected.