The classification of the relationship of subordination therefore does not depend on the express will of the parties or on the name they have given to the contract between them, but on the concrete relationship they actually maintain. Therefore, the person who wants to prove existence will be entitled to provide very concrete evidence to demonstrate that he is under the authority of his contractual partner. It should be noted that this definition compensates for the absence of a definition of the relationship of subordination in the Labour Code. The criteria that are often used to qualify the relationship as subordination are: A network that asks you to work as a freelancer to have a job offer for “freelancers”, a single client. Be careful, this could look like a disguised employee job. This applies in particular to micro-entrepreneurs. “Employees work under a contract for another enterprise in exchange for a salary or equivalent remuneration with a relationship of subordination.” However, the relationship of subordination between the service provider and the customer must be lacking: the service provider must retain its professional independence and must in no case be under the control of the customer. If such a link is found, the contract can be reclassified as a contract of indefinite duration, which has serious consequences for the customer. Very often, former plaintiffs actually try to obtain such a requalification from the labour courts. Freedom of speech.
The relationship of subordination does not allow the employer to use the power of his employer as he deems appropriate to restrict the freedom of expression of these employees: characterizes the existence of a power of instruction and control over the provision of the service, which characterizes a relationship of subordination, and therefore of an employment contract, according to the judge, which states on the one hand: that the application was equipped with a geolocation system, which allowed the company to track the position of the courier in real time and count the total number of kilometers traveled by the courier, and that, on the other hand, the company was authorized to impose penalties on the mail. an agent who is responsible for the recovery of the debts of a company and who habitually operates in a given geographical area according to a precise and mandatory modus operandi and who is required to comply with the company`s directives, to report on the matters dealt with and to respect the deadlines imposed on him, despite the freedom of movement inherent in the nature of his functions, in a relationship of subordination with the company (Cass. soc., 31 Oct. 2000, No. 99-13.949); The Labour Code does not mention the relationship of subordination. Therefore, in order to know what the law stipulates in this regard, it is necessary to refer to the case law. In particular, Judgment No. 9413187 of the Social Chamber of the Court of Cassation of 13 November 1996 may be heard. The Labour Code does not contain a general definition of an employment contract. In the absence of a legal definition, the case-law has established the criteria for its definition, including the criterion of the relationship of subordination since the “Bardou” judgment (Soc. 6 July 1931).
It is worth mentioning the judgment of the Court of Cassation of 28 November 2018[3], which establishes the link of subordination between the “collaborative work platform” Take Eat Easy and its cyclists (often micro-entrepreneurs), which sets a remarkable precedent in labour law for the workers of these platforms. The employment relationship is an unbalanced relationship in which the two parties (employer and employee) are not equal. This imbalance is legally reflected in the concept of a relationship of legal subordination, which is the essential criterion for the classification of the employment contract. In that judgment, the Court of Cassation listed, inter alia, the criterion of integration into an organised service in order to characterise the relationship of subordination. If the relationship of subordination is proven, the relationship is qualified as an employment contract and the termination of the employment relationship, if it is at the initiative of the customer, is considered a termination. Since this dismissal was often recorded before the dispute, it is also considered to be a dismissal without real and serious reason, by which the client, who is thus converted into an employer, is ordered to pay a high compensation to the “employee”. However, the Court of Cassation recently reclassified the contract that linked an employee to UBER as an employment contract by establishing the existence of a relationship of subordination. To learn more about this topical issue, I refer you to this note from the Court of Cassation. Three terms should catch our attention here: contract/salary/subordinate relationship. Whatever the type of employment contract, the relationship of subordination exists as soon as a person, the employer, can exercise his power to issue instructions to another person, the employee.
This power includes the power to issue instructions, the power to supervise their execution and the power to sanction their improper execution. It must be possible to exercise it at any time, but not necessarily in a narrow and uninterrupted manner. It is therefore sufficient that this power of instruction or subordination is at least potential, by which the employer has at all times the power exercised or not to issue orders and supervise their execution. In such a case, it would first be necessary to specify the conditions of the action for contractual reclassification (procedural requirements: limitation period, competent court; Prerequisites for proof of the employment contract; substantive conditions: remuneration, work and relationship of subordination) and then evoke the effects of such an action. To determine this triple power (and therefore the relationship of subordination), the judges refer to a number of indications, including: The relationship of subordination, as long as it is established by labour law (formalized by a contract of employment), gives the parties concerned rights and obligations: the power of the employer (and the resulting relationship of subordination) finds its source: When attempting to: To summarize these criteria and the definition of the relationship of subordination given in the case law, it can be concluded that the employer in a position of authority has two broad categories of powers. Integration into an organized service is another indication of the submission relationship (Soc., July 7, 2010, No. 08-45.538) The Court of Cassation establishes the following definition of the relationship of subordination: “The relationship of subordination is characterized by the performance of work under the authority of the employer, who is empowered to give orders and instructions, to control their execution and to sanction the omissions of his subordinate […].