Franco-British comparison of attempts to provide social protection for platform workers at the time of the pandemic: towards a new balance between public and private actors?
Résumés
Une comparaison des protections sociales françaises et britanniques accordées aux travailleurs de plateformes de fourniture de services et de livraisons pour faire face à la pandémie conduit à s’interroger sur l’effet des adaptations juridiques proposées par la France et le Royaume-Uni et sur la répartition des rôles entre pouvoirs publics et acteurs privés.
Entrées d’index
Mots-clés :
travailleurs de plateformes, économie collaborative, État providence, protection sociale, droit comparéKeywords:
platform workers, collaborative economy, welfare state, social protection, comparative lawPlan
Haut de pageNotes de l’auteur
This is part of a research project launched by the MIL (Marchés, Institutions, Libertés centre) at UPEC (University Paris Est Créteil) for 2021-2024, on the issue of the social protection of platform workers seen from the angle of social citizenship. This cross-disciplinary and comparative research (3 disciplines: history, law and sociology; and 4 States: France, United Kingdom, Sweden, Portugal - as well as the EU) is funded by the French National Research Agency, the ANT (Project no. ANR-20-CE26-001-01). For more information: https://cepassoc.hypotheses.org/
Texte intégral
- 1 OECD, Tackling coronavirus (Covid-19) - Key policy responses from the OECD, Paris, OECD Publishing, (...)
- 2 The European Commission Proposal for a Joint Employment Report analyses the impact of the Covid-19 (...)
- 3 Conseil national des politiques de lutte contre la pauvreté et l’exclusion sociale (CNLE), Rapport (...)
- 4 See for example the Porto Social Summit: https://www.vie-publique.fr/en-bref/279808-sommet-europeen (...)
- 5 UK Parliamentary report, March 2021: https://committees.parliament.uk/work/318/unequal-impact-coron (...)
- 6 A. Adams-Prassl, T. Boneva, M. Golin and C. Rauh, “Inequality in the impact of the coronavirus shoc (...)
- 7 T. Novitz, “COVID-19 and Labour Law: United Kingdom”, Italian Labour Law e-Journal, vol.13, special (...)
- 8 Between mid-March and 1 April 2020, 950,000 people applied for universal credit: see R. Booth and K (...)
- 9 O. Causa and M. C. Cavalleri, “How non-standard workers are affected and protected during the Covid (...)
- 10 G. Kristanadjaja, «Travailleurs des plateformes: “Coronavirus ou pas, on bosse sinon on ne gagne ri (...)
- 11 “Uber driver dies from Covid-19 after hiding it over fear of eviction”, The Guardian: https://www.t (...)
- 12 “Red card for platform abuses in the Covid-19 crisis”, ETUC documents: https://www.etuc.org/en/docu (...)
- 13 C. Petillon, «Droit du travail: ce que changent les mesures d’exception face au Covid-19», France c (...)
1The lockdowns, restrictions and economic recession caused by the Covid-19 pandemic have had a considerable impact on the employment market all over the world.1 We have seen the steepest decline in employment in half a century.2 In France, one report suggests that three percentage points have been lost from GDP compared to before the crisis, 285,000 jobs were destroyed in 2020, and there was rise in poverty3 and a 9.1% increase in unemployment in the third quarter of 2020.4 In England, the government5 and several authors6 have noted similar difficulties: job losses due to the pandemic amounted in mid-March 2020 to 8% of workers, the worst affected being young and precarious workers.7 Applications for “Universal Credit”, the equivalent of the French RSA benefit, increased.8 These figures highlight the key role of social protection in dealing with the sometimes dramatic social consequences of losing one’s job. Although support measures were brought in to save millions of jobs, non-standard workers, and platform workers in particular, have not always been able to access these benefits,9 whether in France,10 in England11 or elsewhere.12 The reality being that those who could continue working did so, in spite of the recommendations to stay at home.13
- 14 https://www.eurofound.europa.eu/observatories/eurwork/industrial-relations-dictionary/platform-work(...)
- 15 See the 4 categories proposed by R. Botsman and R. Rogers, What’s Mine is Yours, Harper Collins, 20 (...)
- 16 S. Abdelnour and D. Meda, Les nouveaux travailleurs des applis, PUF, 2019.
- 17 A. Adams-Prassl, op. cit.
- 18 Infra, §IIB.
- 19 Open Democracy, “How is the platform economy responding to COVID-19?”, https://www.opendemocracy.ne (...)
2Platform work is defined as “an employment form in which organisations or individuals use an online platform to access other organisations or individuals to solve specific problems or to provide specific services in exchange for payment”.14 This definition covers a large number of situations: it includes for example deliveries (Amazon, etc.), collaborative food consumption (Deliveroo, Ubereats, etc.), offers of products or accommodation (Airbnb, etc.), the opening of redistribution markets (eBay, etc.) or collaborative lifestyles (Facebook, etc.).15 It is not really possible to speak of platform workers in general terms insofar as this expression covers such a diverse reality, different profiles, varied activities, different statuses.16 One category, that of service and delivery platform workers, has attracted particular attention from the public,17 judges and lawmakers,18 and even more so during the pandemic.19
- 20 By social protection, we mean the “key function of social protection (which is) is to protect peopl (...)
- 21 Ibid., §9.
3This article proposes to compare the changes made to the social protection of service and delivery platform workers to tackle the Covid-19 crisis in France and in the United Kingdom. 20This study cannot deal with all the branches of social protection “covering a variety of social risks ranging from old age to illness or unemployment”,21 and so will be limited to the measures taken by France and the United Kingdom to make up for platform workers’ drop in income and cover their risk of illness, in particular in the event of contamination by Covid-19. As far as the responses of the platforms themselves are concerned, this study will limit itself to two case studies: Uber and Deliveroo, in France and in the United Kingdom.
- 22 T. Müller and T. Schulten, Ensuring fair short-time work-a European overview, Policy Brief 7/2020, (...)
- 23 S. Spasova, Ibid., p. 12.
4It seems that platform workers, like non-standard workers22 generally, have often been overlooked by the public authorities and have not been - or only to a very limited extent - the subject of particular relief measures in the face of the pandemic.23 On the other hand, or as a result of this, certain platforms, under pressure in the emergency, have chosen to provide a kind of substitute social protection to self-employed workers, in order to cope with the risks they were facing. The crisis will have been the catalyst for this. This pragmatism raises questions about the interaction between the public authorities and private actors in an emergency and over the longer term. It also raises the question of the universality of social protection and the place of other support mechanisms available and how they are interlinked (complementary or supplementary insurance schemes, financial assistance, etc.).
- 24 Infra, §IIB.
5This gesture must be examined in the light of the past: in the 19th century, the construction of social protection was able to involve a mobilisation of employers - and not platforms -, since employers’ unions were seeking at all costs to avoid the state being in control of a national social security system. It also has to be seen through the prism of the current trends that are sketching out the future: this reaction to the crisis is in keeping with a wider movement of liberation and/or increased recognition of responsibilities by platforms. Faced with burgeoning case law, lawmakers are attempting to encourage greater involvement by the platforms in the social protection of their “partners or self-employed workers”. It will be necessary to examine the platform operators’ social charter provided for by the LOM law, the duty of vigilance in the new draft law on platforms of December 2020, the Frouin Report in France as well as the Taylor Report, the recently dismissed case brought by the IWGB trade union relating to discrimination against platform workers in a period of pandemic and the Supreme Court’s Uber judgement of February 2021 in the United Kingdom.24 This study will draw the consequences of the legal adaptations identified and their limits (I) in order to pick out some possible theoretical changes that could be made to social protection in light of the crisis (II).
I - Legal and practical adaptations of social protection In France and the United Kingdom in the face of the pandemic
6The social protection of platform workers has seen some adaptations to cope with the emergency, and in different ways in France and in the United Kingdom. Several universal benefits have been increased and new benefits have been created, in the context of a state of emergency, by means of solidarity funds. But these funds have often ignored, in both countries, the specific needs of platform workers (A). Faced with the lack of effectiveness of the formal cover, several platforms have chosen to complete the state insurance systems with supplementary financial assistance, granted subject to certain conditions to some of their workers if they test positive for Covid-19, on top of a protection offer negotiated with private insurance companies (B).
A - Public action taken by the French and British governments
7The States envisaged two types of action to come to the aid of the population in general and, therefore, platform workers also: the creation of support funds and the increasing of universal benefits.
1 - The French state of emergency and the British Coronavirus Acts
- 25 Emergency Law no. 2020-290 of 23 March 2020 0 aimed at dealing with the Covid-19 epidemic, JORF no. (...)
- 26 See the list of social texts in France: https://www.leclubdesjuristes.com/blog-du-coronavirus/texte (...)
- 27 https://www.vie-publique.fr/dossier/273985-les-ordonnances-covid-19-mars-and-avril-2020-dossier. Fo (...)
- 28 Article R. 5122-1 of the French Labour Code. See R. Dalmasso, «Les trois âges de l’activité partiel (...)
- 29 Dossier «Assurance chômage, un nouveau modèle ?», Droit Social, 2018, p. 580. See also M. Badel, «L (...)
8Faced with the pandemic, the governments were relatively quick to take emergency measures. When France declared the state of health emergency on 24 March 2020,25 the government brought in various measures by way of government orders,26 in particular in the area of labour and social security law,27 making a distinction between salaried workers and the self-employed. Salaried workers had access to a partial furlough-type job-saving scheme;28 self-employed workers, who had only recently been granted - restrictive - access to an unemployment-type benefit,29 were entitled to an indemnity thanks to the creation of a solidarity fund which paid a grant directly to very small enterprises (TPEs), micro-enterprises and self-employed workers, who were the victims of temporary lay-offs.
- 30 https://www.gouvernement.fr/info-coronavirus
- 31 Except exceptional cases of changes of status, infra §IIB.
- 32 In addition there are provisions intended to improve the situation of jobseekers following the end (...)
- 33 Art. L. 1222-11 of the Labour Code.
- 34 For example on training, see Art. L. 6314-1 and L. 6313-11 of the Labour Code, as well as the condi (...)
9A comparison with salaried workers, on the one hand, and companies,30 on the other, showed that platform workers, who are most often self-employed with “auto-entrepreneur” status,31 were at a disadvantage. Salaried workers actually had access to extra forms of protection: on top of the advantages linked to their status (better sick pay and access to unemployment payments),32 they also had better protection in terms of working from home,33 “barrier measures” and access to training under a government scheme known as “FNE-Formations”.34 Finally, the status of auto-entrepreneur does not entitle platform workers to withdraw from their workplace if they consider that the situation is too dangerous.
- 35 R. Lafore, op. cit.
- 36 Several conditions: to have started their activity before 1/2/2020, have fewer than 11 employees, p (...)
- 37 M. Badel, «L’indemnisation du chômage total à l’heure du Covid-19», op. cit., p. 687.
10Above all, platform workers barely benefited from this “public coverage of the income of salaried workers and the self-employed”35 because it was difficult for them to meet the conditions of eligibility,36 since these did not take into account the fluctuations in their turnover, the lack of any substantial length of service in non-salaried activity or the insufficient income generated.37
- 38 Decree no. 2020-1048 of 14 August 2020 amending Decree no. 2020-371 of 30 March 2020 on the solidar (...)
- 39 Decree no. 2020-1328 of 2 November on the solidarity fund for companies particularly affected by th (...)
- 40 Before 31 August 2020 or before 30 September 2020.
- 41 Decree no. 2021-553 of 5 May 2021 on the adaptation for April 2021 of the solidarity fund for compa (...)
- 42 Decree no. 2020-1103 of 1 September 2020 on the social contributions and dues of companies, self-em (...)
- 43 Aid scheme known as “AFE COVID” specifically for self-employed people whose activity has been inter (...)
11These difficulties were heard by the government during the second lockdown. Whereas a Decree in August 2020 had restricted the list of beneficiaries of the solidarity fund,38 another Decree in November 2020 allowed a company or auto-entrepreneur to obtain assistance if they had lost at least 50% of their turnover over the period from 1 October 2020 to 30 November 2020.39 And the start of the activity was moved forward in order to encompass all companies, including the most recent ones.40. Later, auto-entrepreneurs were able to receive the compensatory grant (subvention compensatoire), regardless of the size of the loss of turnover.41 In addition to this there were contributions waivers and assistance with their payment,42 as well as an exceptional financial grant (aide financière exceptionnelle, AFE COVID) proposed by the self-employed workers’ social protection council (Conseil de la social protection des independants).43
- 44 https://www.auto-entrepreneur.fr/actualite/mise-a-jour-de-l-aide-pour-les-auto-entrepreneurs-suite- (...)
- 45 Order no. 2021-135. A Decree dated 3 June 2021 extended the application of the exemption and aid sc (...)
- 46 See Decrees no. 2021-671 and no. 2021-674 of 28 May 2021 adapting the rate of benefit in the event (...)
12As we write, in July 2021, the restrictions imposed to combat the spread of the Covid-19 epidemic are being progressively lifted. The government has begun to reduce its coverage of furlough schemes. The aide auto-entreprise was due to start being reduced in June 202144 and the end of all forms of aid has been provisionally set at 31 December 2021.45 The government has, however, once again extended the application of the furlough scheme that provides indemnities and a partial furlough allowance.46
- 47 Social Security Contributions and Benefits Act 1992 (amended by the Coronavirus Act 2020); Statutor (...)
- 48 The interruption in working cannot be partial.
- 49 PAYE (Pay As You Earn) is the income tax withholding scheme of HMRC (Her Majesty’s Revenue and Cust (...)
- 50 Platform workers may have the following statuses: agency workers, those on zero-hours contracts, in (...)
- 51 Analysis proposed just before the Uber judgment in February 2021 which would create an exception.
- 52 J. Hendy, op. cit.
- 53 In English “furlough”; J. Hendy, op. cit.
13In England, two types of measures were rushed through in the emergency for workers in difficulties.47 First of all, a Job Retention Scheme enabled a company to suspend the activities of its workers: they did not work48 and were paid 80% of their salary up to £2,500 per month. This scheme only applied to salaried workers, and more generally to workers specifically registered on the PAYE tax scheme.49 It was supposed, according to the government, to include platform workers and precarious workers.50 But several have shown that the latter were frequently overlooked: for example, an Uber driver working for a platform without an employment contract,51 and whose customer or consumer is not the employer (typical platform economy model) was excluded from this scheme.52 More generally, the scheme was criticised because it gave the employer the choice of letting a too-expensive worker go rather than putting them on the job retention scheme.53
- 54 A. Bogg and M. Ford, “Furloughing and fundamental rights”, UK labour law blog: https://uklabourlawb (...)
- 55 D. Hirst and al, “Coronavirus: support for businesses”, House of Commons Briefing Paper, 3 April 20 (...)
- 56 K. Bales, “COVID 19 and the Future of Work”, 2 April, 2020: https://legalresearch.blogs.bris.ac.uk/ (...)
- 57 See, for example a recent judgment of the Court of Appeal on the right of Deliveroo delivery worker (...)
- 58 https://iwgb.org.uk/page/support-our-campaign; https://iwgb.org.uk/en/post/iwgb-to-sue-uk-governmen (...)
- 59 The improvement consists of faster payment of the aid, but the persons eligible remain the same as (...)
- 60 Amount available increased to 40% of the income on 24 September 2020, then 80% of that on 31 Octobe (...)
- 61 https://www.gov.uk/guidance/claim-a-grant-through-the-coronavirus-covid-19-self-employment-income-s (...)
14Platform workers were nevertheless able to try and benefit from the self-employed workers’ scheme.54 The Self-employed Income Support Scheme (SEISS) is similar to the model above, but applies the self-employed, who can obtain 80% of their profits up to a maximum of £2,500 per month. Platform workers were supposed to be able to access this scheme more easily. However, there were many conditions: to obtain the income support, it was necessary to have been self-employed for the last three years. Those who received £50,000 profit less than in the previous year, or the average of the three previous years, obtained a one-off payment from the Inland Revenue in June 2020. This scheme would only cover 62% of the self-employed and exclude the new workers on the market.55 Finally, it should be noted that only salaried workers could refuse to work for health and safety at work reasons.56 Legal actions were brought by the Independent Workers Union of Great Britain (IWGB), which generally defends the rights of platform workers and precarious workers.57 It claimed that that there was a failure - a refusal even - to extend this right to precarious and self-employed workers as well as that the measures proposed by the government for the self-employed were inadequate.58 The SEISS was quadrupled and improved59 during the second lockdown, and has been offered twice since then.60 It will be accessible again at the end of July 2021.61 However, it remains difficult to obtain for platform workers.
15In spite of the improvements, it seems that overall neither France nor England altered their general inclusion rules or their classic worker categories in dealing with the pandemic. In other words, in spite of the extensions, atypical workers were not brought into the schemes or into categories to which they normally did not have access. The workers who did not benefit from the forms of aid described above (salaried workers/self-employed workers) had to turn to the welfare system. These benefits, which may or may not be universal, were increased during the pandemic.
2 - The increase in universal aid
- 62 Insee, “Une photographie du marché du travail en 2019”, Insee Première, no. 1793, February 2020; Eu (...)
16It is difficult to get a clear picture of the situation of platform workers as a whole, in France and in England. But it is known that temporary workers have been hit hardest by the pandemic and that many of them have lost their jobs.62 In France, as in England, it is necessary to make a distinction between, on the one hand, access to replacement incomes, which have been increased and, on the other hand, sickness coverage, as well as the access to healthcare, which have not changed - or only slightly.
- 63 On the additional condition of not being a student or unpaid trainee in a company.
- 64 See Law no. 2008-1249 of 1 December 2008 “extending the scope of the Revenu de Solidarité Active an (...)
- 65 Order no. 2020-312 of 25 March 2020 had automatically prolonged entitlement to the RSA. It allows b (...)
- 66 It was €564.78 for a single person with no children after the re-evaluation on 1 April 2020. The re (...)
- 67 Decree no. 2020-519 of 5 May 2020 allocating an exceptional health-emergency solidarity grant to th (...)
- 68 A person aged over 18 years and below the retirement age living in the United Kingdom must have a v (...)
- 69 https://www.understandinguniversalcredit.gov.uk/coronavirus/
- 70 £409.89 per month, equivalent to €481.
- 71 Statutory Sick Pay Act 1994: https://www.legislation.gov.uk/ukpga/1994/2/contents
- 72 Minorities known as “BAME” (Black, Asian and Minority Ethnic workers).
- 73 https://iwgb.org.uk/page/support-our-campaign
- 74 https://www.gov.uk/employment-support-allowance
- 75 For example, in Belfast, it is specified that only those who could not benefit from the self-employ (...)
17As far as access to replacement incomes is concerned, France and the United Kingdom both applied increases and extensions. In France, the “active solidarity income” benefit (Revenu de solidarité active, RSA), which provides a minimum income to those with no resources and is available to French people over the age 2563 and legally resident foreigners,64 was extended during the crisis.65 It was also increased in 2020 and in 2021.66 An exceptional solidarity grant (aide exceptionnelle de solidarité67 was also introduced. In the United Kingdom, access to Universal Credit, which is already relatively wide,68 was facilitated by the addition of a month’s payment without the need to go to a job centre.69 Access to this benefit was opened to the self-employed, but the level of the allowance remains low.70 The IWGB union brought a second action in March 2020 against the social security law71 on the grounds that the conditions for granting indemnities discriminated against minorities,72 women and collaborative economy workers, particularly during a public health crisis.73 Furthermore, the United Kingdom allowed income tax to be paid monthly and modernised an employment allowance (“New Style” Employment & Support Allowance- ESA) which, initially reserved for the disabled, was extended to those unable to work because of Covid-19).74 Finally, some local authorities were sometimes able to pay special allowances to platform workers.75
- 76 R. Marié, «Variations autour du régime juridique des indemnités journalières de sécurité sociale en (...)
- 77 £95.85 per week since 6 April 2020, i.e. less than 30% of the minimum wage; J. Hendy, op. cit.
- 78 See UK Employment Rights Act 1996, s. 230.
- 79 https://www.gov.uk/statutory-sick-pay/eligibility. This entitlement is granted as of the first day (...)
- 80 https://iwgb.org.uk/en/post/iwgb-to-sue-uk-government-over-its-failure-to-protect-precarious-worker (...)
18As far as sickness coverage is concerned, this did not see any major changes due to the pandemic. Sickness benefits are limited to certain workers (most often salaried workers) in France and in England. Although overall, in France, it is to be welcomed that there is “system of sickness insurance […] accessible to all residents, regardless of their professional activity and their resources”,76 platform workers nevertheless frequently found themselves unable to access it. It could have been assumed that lawmakers would extend access to atypical workers, but this did not happen. In England, sick pay77 is only available to salaried workers, and only those paid more than £118 per week.78 Precarious workers or platform workers79 are excluded from this scheme. This differentiation led the IWGB to add to its action the fact that these indemnities discriminate against collaborative economy workers.80
- 81 R. Pellet and A. Skzryerbak, Droit de la protection sociale, PUF, Thémis Droit, 2017, p. 50. Concer (...)
- 82 P. Pédrot, «L’accès aux soins des personnes les plus démunies à l’épreuve de la Covid», RDSS, Dossi (...)
19As far as access to healthcare is concerned, once again the pandemic has not led to any changes. Healthcare is free and open to all in England under the National Health Service (NHS). But not all services are covered. In France, self-employed people benefit from less generous coverage than salaried workers.81 According to the Council of the European Union, evidence shows that some non-standard workers and some self-employed persons have insufficient access to the branches of social protection which are more closely related to participation in the labour market.82
- 83 See the distinction proposed by S. Spasova, op. cit., p. 22. Furthermore, the question of gender an (...)
20Finally, in both countries, although formal coverage of platform workers is guaranteed by the social protection systems, coverage seems not to be entirely effective.83 In particular, access to voluntary protection schemes shows how workers can be theoretically covered but without actually making the choice to be effectively covered (sometimes for reasons of cost). In view of the difficulties faced by workers, certain platforms have decided to do something about it.
B - Extra aid and private insurance provided by certain platforms
21Some platforms have sought, in a pragmatic way, to help those they call their independent partners or workers. For example, Uber and Deliveroo have set up special co-called coronavirus aid policies. They have also turned, as they have done for some years, to private insurance companies.
1 - A policy of aiding workers
- 84 https://www.uber.com/fr/blog/update-covid-19-financial/
- 85 Since 4 January 2021: https://riders.deliveroo.co.uk/en/news/latest-covid-19-updates
22Several service or delivery platforms, and in particular those whose workload increased due to the pandemic, took measures to help out their workers. In the same way as certain platforms introduced “contactless” deliveries, with the aim of protecting both the delivery worker and the consumer, they also endeavoured to promote deliveries under safe health conditions. Uber thus reimbursed the costs of buying sanitisers up to a value of €25 on presentation of receipts.84 Deliveroo gave out free hygiene kits (mask and hand sanitiser) to all its riders.85
- 86 Uber United Kingdom: https://www.uber.com/en-GB/blog/covid-financial-assistance/ ; Uber France: htt (...)
- 87 https://www.bbc.co.uk/news/business-52092722?intlink_from_url=&link_location=live-reporting-story ; (...)
23Furthermore, Deliveroo and Uber paid indemnities to riders and drivers forced to quarantine or contaminated by the coronavirus, and offered teleconsultations at no charge. Both platforms have undertaken, in France as in the United Kingdom, to pay compensation for a maximum period of 14 days to any driver with Covid-19 - or obliged to isolate. Uber offers a maximum of £100 (equivalent to €115)86 or €100 per week. This policy of support has been difficult to implement due to the difficulty of obtaining medical certificates.87
- 88 https://riders.deliveroo.co.uk/en/food-safety. The last of these provisions no longer exists. The p (...)
- 89 See https://www.uber.com/fr/blog/update-covid-19-financial/, and compare to https://www.uber.com/fr (...)
- 90 This amount will be different from one city to another. The total amount could not be less than €50 (...)
- 91 https://www.uber.com/fr/blog/update-covid-19-financial/
24Deliveroo later ended this specific scheme in the United Kingdom.88 Uber restricted it by means of an extension of the personal scope and a concomitant reduction in the allowances paid.89 Initially this amount was calculated only on the basis of the history of average weekly incomes over the last 3 months before the driver or rider’s application for the allowance. In April 2020, Uber added a ceiling corresponding to the average income of all drivers, or all the delivery riders working in the city where the driver or rider works.90 It should also be added that the allowance is not guaranteed, the drawback being that the application for the allowance automatically leads to the temporary suspension of the account,91 at least until the application is processed (at most 7 days). Independently of their allowance schemes, Uber and Deliveroo also contacted insurance companies to offer their workers extra insurance coverage.
2 - Extra insurance
- 92 Several conditions must be added: the insured person can claim cover if: a) there are aged under 70 (...)
- 93 https://riders.deliveroo.fr/fr/indemnite-maladie
- 94 For Deliveroo, see: https://riders.deliveroo.co.uk/en/support/new-riders/what-does-deliveroos-free- (...)
25In France, in the United Kingdom and in other European countries, platforms such as Uber or Deliveroo have also turned to insurers. For example, Deliveroo France has joined forces with Wakam and Qover to offer its workers sickness insurance applicable if they are contaminated with Covid-19. In France, Deliveroo’s partner riders are protected as long as they have completed at least 30 deliveries with Deliveroo in the last 8 weeks.92 In the event of a total inability to work due to an illness certified by a doctor and lasting more than 7 consecutive days, the riders are entitled to an allowance of €30 a day up the fifteenth day off work inclusive.93 It should be noted that subcontractors cannot take advantage of this cover. This cover has not been provided in the United Kingdom. Although Deliveroo has called upon insurance company Bikmo to offer two types of insurance (civil liability and accident insurance), but not sickness insurance as the UK’s universal social security system is sufficient.94
- 95 https://www.argusdelassurance.com/produits-services/sante-prevoyance/protection-sociale-axa-renforc (...)
26Uber France, for its part, has called upon insurance company Axa to propose a social protection offer known as “health and personal risk” cover for its self-employed drivers and riders. This partnership was extended to the whole of Europe in 2018.95
27This extra insurance allows residents who have tested positive for Covid-19, subject to eligibility, to claim an extra allowance under the “Partner Protection” cover.
28A distinction must be made between two cases:
-
- 96 On the difficulties adopting the Decree, see M. Badel, “Le Covid au travail par-delà les statuts”, (...)
if Covid is considered as an occupational illness, the driver can receive if they are off work - and as of the first day - a daily payment of €40, paid for a maximum of thirty days. But this means that the Covid-19 has to be considered as an occupational illnesses, which will be difficult to prove and in any case only possible after the event.96 This provision will only be applied in exceptional cases.
-
- 97 They are also entitled to the payment of a bonus for certain life events (maternity/paternity, jury (...)
- 98 https://uber.app.box.com/s/rcghmolgdqhryr8my54fzwzeeyg5t5sc
- 99 https://www.uber.com/fr/fr/drive/insurance/
otherwise, those that Uber calls “Active Uber Partners”, i.e. those who have done at least 150 trips over the last 8 weeks for drivers or 30 deliveries in the last 8 weeks for delivery riders,97 can receive, if they are off work as result of an off-trip accident or non-occupational illness “as of day 8 absent, a daily payment of €40 for a maximum of 15 days”.98 In France, this insurance extend the financial support up to a total of 22 days.99
- 100 (Author’s translation) https://www.uber.com/en-GB/blog/covid-financial-assistance/
- 101 (Author’s translation), https://uber.app.box.com/s/40il45dto63oz39145ksykw8lalna526?uclick_id=f479f (...)
29In the United Kingdom, the situation is more or less the same. If a driver catches Covid-19 and is unfit to work for at least 7 days, after that the scheme pays a fixed amount of £65 (approximately €75) per day for a maximum of 15 days while they are unfit to work.100 Only “Active Uber Partners” can claim these payments, during the insurance period. They must prove that the serious illness started during this insurance period and that a doctor has ascertained that the driver’s inability to work was a direct consequence of this illness.101
- 102 For example, in the event of an occupational accident during a ride (from accepting a trip and for (...)
- 103 https://uber.app.box.com/s/rcghmolgdqhryr8my54fzwzeeyg5t5sc
- 104 https://uber.app.box.com/s/40il45dto63oz39145ksykw8lalna526?uclick_id=f479f8bc-936c-409d-8bac-b6e61 (...)
- 105 https://www.bastamag.net/Uber-Deliveroo-lobbying-Bruxelles-directive-loi-orientation-des-mobilites- (...)
- 106 In Spain, Deliveroo was convicted of defrauding the Social Security, the Spanish courts having cons (...)
- 107 https://riders.deliveroo.fr/fr/support/toutes-vos-assurances-deliveroo/maladie
30These policies also cover several other risks. By way of an example, Uber offers automatic, free cover to its “independent partners”, that is to say drivers and riders working with Uber but less frequently than is required to have the active partner status mentioned above. They are covered with Uber on-trip, that is to say “From the moment of accepting a trip or food delivery request through to completion of that request and for 15 minutes after it has been completed”. They can obtain financial support if they are ill;102 payment of allowances if they are off sick; a flat-rate payment if hospitalised as a result of an on-trip accident or injury; a death or permanent disability benefit.103 By comparison, in the United Kingdom where healthcare is provided by the National Health Service, there is a private insurance policy completing this cover. Uber is thus willing to reimburse up to £7,500 (approximately €8,700) of medical expenses, “towards consultation costs, surgery costs, dental treatment, pharmaceutical costs, rehabilitation costs, the cost of X-rays, medical tests and ambulance costs prescribed and where applicable carried out by a Medical Practitioner incurred by You during the Period of Insurance as a result of an Accident or Bodily Injury”104 if it is not covered by the NHS. Similarly, in France since 2017, following the El Kohmri Law and the ensuing protect movement105 and a court case lost in Spain,106 Deliveroo has offered its delivery riders four insurance policies: civil liability, accident, professional training and sick pay.107
- 108 Y. Pagnerre, «L’impact de la crise sur la protection sociale complémentaire», Droit social, Dossier (...)
31This mechanism is not the first of its kind, and there is a history of links between public and private insurance. This is reminiscent for example, of the subtle interplay of the “complementary insurance” with public insurance and the welfare system.108 But this association nevertheless raises questions in terms of the balance to be found, and also the possible theoretical changes that could be made to social protection in light of the crisis.
II - Theoretical Legal changes to social protection in France and the United Kingdom possible as a result of the pandemic
32Is it possible to identify, in light of the pandemic, a new balance between public and private actors in terms of the social protection of service and delivery platform workers?
33The response is yes and no at the same time, depending on whether a short or a long-term analysis is chosen: in the short term, we are seeing a new awareness of a need to protect vulnerable populations and platform workers in particular (A). A reflection on the development of social protection over the long term, shows that the balance between public and private protection continues to shift (B).
A - The realisation that there is a need for increased protection of vulnerable populations and platform workers in particular
34In the short term, the pandemic has shown the capacity of certain platforms to mobilise to help workers. On this level, a change can be detected. The platforms, relative newcomers to the legal landscape, are finding their place in and alongside the social protection regimes. They are more and more involved in the social protection of self-employed workers compared to a recent past where the situation was a no man’s land that is gradually calling for organisation and regulation. But this involvement does not concern all the platforms; it is born of proactive approach and governed according to their conditions, thereby making for a situation that is more of a patchwork than what public action could guarantee.
- 109 https://www.etuc.org/fr/pressrelease/les-systemes-de-protection-sociale-ont-echoue-au-test-covid-da (...)
- 110 Eurofound, op. cit. ; OECD, op. cit.
- 111 C. Okamura, op. cit., p. 12.
- 112 https://www.gov.uk/government/publications/queens-speech-december-2019-background-briefing-notes
- 113 ETUC, Red card for platform abuses in the Covid-19 crisis, ETUC documents: https://www.etuc.org/en/ (...)
- 114 Such as the International Labour Organisation (ILO Declaration on Decent Work J.-M. Servais, «L’OIT (...)
- 115 A. Supiot, «Seul le choc avec le réel peut réveiller d’un sommeil dogmatique», 21 March 2020, Alter (...)
- 116 ILO, World Employment and Social Outlook: The Changing Nature of Jobs, 2015.
- 117 ILO, Work in the time of COVID, May 2021.
35More generally, the pandemic and the platforms’ reactions have put a spotlight on the gaps in the public social protection systems. The Confederal Secretary of the European Trade Union Confederation (ETUC), Liina Carr, has stated that “Europe’s welfare systems have fallen behind the pace of change in the economy over decades and the Covid crisis badly exposed the huge gaps that were created.”109 This general remark applies more particularly to non-standard workers110 and platform workers, who have often been overlooked by the authorities and have not been the subject of particular relief measures in the face of the pandemic.111 The coronavirus crisis has at least had the merit of drawing attention to the need for the Welfare State to assist all citizens or humans,112 given that the measures taken by certain countries to contain the spread of the virus and provide a certain safety net to workers struggle to protect the most vulnerable of them.113 On this point, progress is being seen in the overall reflection. For a long time, the fundamental texts have stressed the social human rights.114 The pandemic has heightened calls to provide atypical workers with guaranteed access to prevention measures in terms of health and safety, social protection and respect for their fundamental rights and employment rights. According to Alain Supiot, “only the shock of reality can awaken from a dogmatic sleep”; in other words, the pandemic can be an opportunity to rebuild on new foundations.115 The International Labour Organisation asserts that “policies to broaden and develop social protection coverage are needed in light of the changing nature of work”,116 and reiterates this postulate in a period of crisis as its Work in the time of COVID report shows.117 This can still be seen in France and in the United Kingdom.
1 - The Frouin report in France
- 118 See the case law saga marked by the judgment of the Employment Division of the Court of Cassation o (...)
- 119 J.-Y. Frouin, with the assistance of J.-B. Barfety, «Réguler les plateformes numériques de travail» (...)
- 120 Ibid., p. 46.
- 121 J. Dirringer and M. Del Sol, «Un rapport mutique sur les enjeux de protection sociale», Droit Socia (...)
- 122 Conseil National du Numérique (CNNum), Travail, Emploi, Numérique, les nouvelles trajectoires, 2016 (...)
- 123 Vulnerable platform workers who are hit harder as the economic recovery is awaited, could benefit f (...)
- 124 Conseil National du Numérique (CNNum), Travail à l’ère des plateformes. Mise à jour requise, Report (...)
36A striking example is the Frouin Report in France whose remit was not to look into the consequences of the pandemic, but which was marked and delayed by it. Initially this Report was supposed to deal with the representation of platform workers, but it its scope was widened, after the Court of Cassation judgment of 4 March 2020,118 to take in the issues of the “legal security of the status of platform workers, the contractual relationship and social and economic protection of these workers impacted by the dual health and economic crises.”119 Although this report does not tackle the social protection of platform workers, it is a question it skims over, referring to a principle of neutrality120 which is supposed to be emerging outside of the legal rules and at European level. According to Josépha Dirringer and Marion Del Sol, this principle of neutrality according to which social protection should not depend on employment status, would not appear to exist in French law, but is said to have been mentioned in European law.121 This report echoes another one dating from 2016 by the National Digital Council (Conseil National du Numérique) which envisaged “more universality in social rights regardless of employment status”122. In the light of the pandemic, this idea can be found in legal opinion123 and in a 2020 report submitted to the same Council, during the public health crisis, which emphasises the urgent need to help platform workers in difficulties.124 The appearance of this principle, whether or not it has any legal value, is significant and demonstrates that a gradual paradigm shift is taking place.
2 - The British Supreme Court’s Uber ruling of 19 February 2021
- 125 Uber BV v Aslam [2018] EWCA Civ 2748.
- 126 Independent Workers’ Union of Great Britain (IGWB) and RooFoods Limited TA/Deliveroo, Central Arbit (...)
- 127 Uber BV and others (Appellants) v Aslam and others (Respondents) [2021] UKSC 5, 19 February 2021.
- 128 Author’s translation.
- 129 The Taylor Report published in July 2017 proposed to replace the current category of “worker” with (...)
- 130 R. Crawford and H. Karjalainen, Retirement Saving of the Self-Employed, IFS, 2020: https://www.ifs. (...)
- 131 Judgment of the Employment Division of the Court of Cassation of 4 March 2020 no. 19-13316.
- 132 D. Coyle, Precarious and Productive Work in the Digital Economy. National Institute Economic Review(...)
37In the United Kingdom, we find the same trend. After the Uber125 or Deliveroo126 cases, a new Uber judgment was handed down on 19 February 2021 by the British Supreme Court.127 This much awaited decision established the fact that Uber drivers could be considered as “workers”, an intermediate category between salaried workers and self-employed workers. Although this judgment does not, strictly speaking, concern the social protection of Uber drivers - the status of worker entitling them to a minimum wage, paid holidays and a pension -, it should nevertheless be noted that this issue is not eluded. The Court thus proposed an original teleological interpretation by asserting, in the midst of the pandemic, that the purpose of the Employment Rights Act of 1996 is to “to protect vulnerable individuals who are in a subordinate and dependent position in relation to an organisation who exercises control over their work”.128 This requalification, which goes against the 2017 Taylor Report,129 demonstrates the Court’s desire to protect workers and take account of the reality of their subordinate position to conclude that the platform has a responsibility to bear. This decision can be read in the light of considerations relating to the pay and social protection of platform workers. First of all, the drivers now have the right to a minimum wage. Then, this analysis is an appeal to lawmakers: the judge is calling into question a social protection system that continues to be based on the role of the employer, which is more practical in terms of administration but reduces the flexibility of the system. The points out that there are “gaps” in the coverage of atypical workers, who frequently have interrupted periods of contributions. The failings are particularly apparent in terms of sick pay and contributions to pension schemes.130 The British court, like the French court a year earlier,131 has updated the law to respond to what it has identified as a societal need. The question of which model would provide atypical workers with a fiscally viable safety net and training incentives, whilst allowing flexibility of organisation for both the employer and the worker, remains unanswered.132 It will involve a reflection on the balance to be found between public and private protection.
B - A shifting balance between public and private
38A long-term analysis highlights the struggles and alliances between public authorities and enterprises, which have accompanied the construction of the social protection systems in France and in England. An examination of the history of that construction reveals the same “cat-and-mouse” game between public and private actors that we can still see today.
1 - A shifting balance since the birth of social protection
- 133 R. Pellet, op. cit., p. 48.
- 134 L. Bourgeois, Solidarité, Paris, Armand Colin, 1896.
- 135 For example, the occupational accident/illness risks and retirement cover have been completed by pr (...)
- 136 It is necessary to add the “doctrine of the three Us”: unity, uniformity, universality. See N. Kers (...)
- 137 R. Pellet, op. cit., p. 54.
39The use of the insurance technique first appeared at the end of the 19th century133 as a way of setting up solidarity policies on an objective basis.134 Insurance could then be public or private (private insurance, mutual societies, social security, public authorities, etc.) and already public and private schemes were complementing each other.135 France has built a system inspired by the Bismarckian model, while the British system was remodelled by Beveridge, the other father of the welfare state. These two systems differ in that the former is a system of social protection centred on the insurance of salaried income, whereas under the latter the entire population benefits from a basic welfare system organised by the State and funded by taxation.136 Against the background of the opposition between these two philosophies, both countries have been the scene of power struggles and compromises between the State and enterprises. In France and in the United Kingdom, companies’ initiatives on behalf of their workers during the 19th century were not only charitable: they were intended to fix and stabilise the workforce and avoid lawmakers creating a system over the employers would not have had full control.137
- 138 I. Daugareilh and M. Badel, op. cit.
- 139 See the response of R. Pellet [«L’Europe et la privatisation des Etats providences», Droit Social, (...)
- 140 The disappearance of the mutual societies in the United Kingdom when the welfare state laws were pa (...)
40A century later, we are seeing a convergence between the two models. Not only can it be said that the Bismarckian and Beveridgian models are moving closer together,138 but it must also be added that in both countries, private insurance has come to complete the public system. The boundary between public social protection and the private operators is shifting, over time and according to sectors, without the change turning into an overall privatisation139 or leading to the disappearance of private insurance.140 The question arises as to whether private insurance completes the public system or whether the minimal public system fills in the gaps in the private insurance cover. The two propositions are not incompatible. The complementarity of public and private actors appears to be in what is still today a shifting balance.
2 - A shifting balance still today
- 141 As far as occupational accidents are concerned, Law no. 2016-1088 of 8 August 2016 on work, the mod (...)
- 142 M. Freedland, «Le contrat de travail et les paradoxes de la précarité», lecture given at the Collèg (...)
- 143 Letter sent Uber to consumers: At least the National Living Wage. This is a floor, not a ceiling an (...)
41It cannot be said that the platforms are less involved in social protection than their “elder” companies when they had to provide their salaried employees with social protection. However, at this stage, they are not forced by law to provide assistance to workers, but only encouraged to do so by the threat of legislative action. History has shown how public and private actors were still playing “cat-and-mouse” as the latter sought to avoid legislation that would be too costly by unilaterally taking generous measures. This game appears, if we examine the behaviour of certain platforms, to be going on again, both in France and in England. In France, we saw it when insurance was introduced in 2017. Uber’s partnership with Axa dates from the passage of the El Khomri Law141 against a background or legal tensions and accusations of “disguised employment”.142 Likewise, in the United Kingdom, as already mentioned, the partnership with Axa is changing because the above-mentioned Uber judgment has transformed the platform’s obligations. The passenger users of Uber UK were sent a message the day after the judgment saying that Uber drivers would now automatically be entitled to paid holidays, a pensions scheme and would be guaranteed the national minimum wage, pointing out that “Uber was proud to be making these changes for drivers, who are an essential part of our everyday lives”, and that “making these changes is the right thing to do, and we hope other operators will join us in taking this important step.”143 The trend is for the platforms and private insurance companies to become more involved in the collaborative economy sector, which is still under construction. This trend is being encouraged and regulated by the public authorities.
- 144 Law no. 2019-1428 of 24 December 2019 on the orientation of mobilities (“LOM”).
- 145 Special provisions of the LOM concerning car transport or meal delivery platforms of the “above-gro (...)
- 146 Bill no. 187 on the protection of self-employed workers by creating a duty of vigilance, the defenc (...)
- 147 See new Order no. 2021-484 of 21 April 2021 on the methods of representation of self-employed worke (...)
- 148 Government’s refusal to act after the Taylor Report, see: https://assets.publishing.service.gov.uk/ (...)
- 149 https://www.theguardian.com/business/2021/may/26/uber-agrees-historic-deal-allowing-drivers-to-join (...)
42An original development can be seen compared to the historical trend which lies in greater responsibility being given by the State to private entities, which could correspond to the State disengaging from its role as framework and creator and guarantor of hard law. This appears, for example in the Orientation of Mobilities Law known as the “LOM”144 which only applies to a certain, small number of platforms,145 but which introduces the concept of the social responsibility of enterprises into French law; it gives the platforms the possibility of establishing a charter setting out the conditions of exercise of the professional activity and any complementary social protection guarantees negotiated by the platform from which the workers may benefit. We find it again in a draft bill146 and in the Decree on platforms that attempts to introduce a social dialogue within the platforms147 in 2021. Once again lawmakers are not imposing anything binding on the platforms. They are urging them to negotiate with the workers. The rule becomes one of incentivising and not obligation imposed by French law. This is not the case in the United Kingdom, where lawmakers have yet to take any action.148 But public opinion has nevertheless recently driven Uber to recognise the British union, the GMB, to conduct negotiations with its drivers.149
Conclusion
43In France as in the United Kingdom, the question of the operation of private benefits and insurance as opposed to public social protection in a period of pandemic has identified a dual, paradoxical trend: the platforms find themselves facing a strong and protective State, capable of using State-controlled social protection to come to the aid of the population; but it is also a hesitant State, which is groping for the best way to force or encourage the platforms to take part in this social protection in a world transformed at once by digitalisation and flexible work models.
- 150 According to the expression in the Council Recommendation of 8 November 2019 on access to social pr (...)
44Without imposing, for all that, a long-term maintenance of the mechanisms of attachment to the benefits of the unemployment scheme or flat-rate aid in the form of income guarantees, the French and British States are progressively writing a new social contract. Within this framework, it will be necessary to rethink the rights (for example, waiting periods, calculation rules, duration of benefit payments) and the rules governing contributions (for example, vesting periods, minimum work periods) so that these do not prevent platform workers “from accruing or accessing benefits because of their type of employment relationship or labour market status.”150 It will still be necessary to choose between incentivising and obligation on the part of the public authorities when deciding what benefits are necessary to the respect for the dignity of the platform worker.
Notes
1 OECD, Tackling coronavirus (Covid-19) - Key policy responses from the OECD, Paris, OECD Publishing, 2020: http://www.oecd.org/coronavirus/en/policy-responses; OECD, Paid sick leave to protect income, health and jobs through the COVID-19 crisis, Paris, OECD Publishing, 2020: https://www.oecd.org/coronavirus/policy-responses/paid-sick-leave-to-protect-income-health-and-jobs-through-the-covid-19-crisis-a9e1a154/ ; MISSOC, Comparative Tables on Sickness-cash benefits, Brussels, Mutual Information System on Social Protection, 2020: https://www.missoc.org/missoc-database/comparativetables/
2 The European Commission Proposal for a Joint Employment Report analyses the impact of the Covid-19 on employment and the social situation in Europe adopted on 9 March 2021; S. Spasova and al., Non-standard workers and the self-employed in the EU: social protection during the Covid-19 pandemic, ETUI report: https://www.etui.org/publications/non-standard-workers-and-self-employed-eu
3 Conseil national des politiques de lutte contre la pauvreté et l’exclusion sociale (CNLE), Rapport au Premier ministre, «La pauvreté démultipliée», 12 May 2021: https://www.cnle.gouv.fr/IMG/pdf/rapport_lutteexclusion_fin.pdf
4 See for example the Porto Social Summit: https://www.vie-publique.fr/en-bref/279808-sommet-europeen-social-de-porto-quelles-mesures-de-sortie-de-crise
5 UK Parliamentary report, March 2021: https://committees.parliament.uk/work/318/unequal-impact-coronavirus-and-bame-people/
6 A. Adams-Prassl, T. Boneva, M. Golin and C. Rauh, “Inequality in the impact of the coronavirus shock: Evidence from real time surveys”, Journal of Public Economics, 2020, p. 104.
7 T. Novitz, “COVID-19 and Labour Law: United Kingdom”, Italian Labour Law e-Journal, vol.13, special 1, 2020.
8 Between mid-March and 1 April 2020, 950,000 people applied for universal credit: see R. Booth and K. Rawlinson, “950,000 apply for universal credit in two weeks of UK lockdown”, The Guardian, 1 April 2020.
9 O. Causa and M. C. Cavalleri, “How non-standard workers are affected and protected during the Covid-19 crisis: stylised facts and policy considerations”, CEPR, VOXeu, 30 June 2020.
10 G. Kristanadjaja, «Travailleurs des plateformes: “Coronavirus ou pas, on bosse sinon on ne gagne rien”», Libération, 17 March 2020; T. Akmen, AFP, Economie Entreprises, Coronavirus, BFMTV, 19 March 2020.
11 “Uber driver dies from Covid-19 after hiding it over fear of eviction”, The Guardian: https://www.theguardian.com/world/2020/apr/17/uber-driver-dies-from-covid-19-after-hiding-it-over-fear-of-eviction
12 “Red card for platform abuses in the Covid-19 crisis”, ETUC documents: https://www.etuc.org/en/document/red-card-platform-abuses-covid-19-crisis
13 C. Petillon, «Droit du travail: ce que changent les mesures d’exception face au Covid-19», France culture, 25 March 2020: https://www.franceculture.fr/economie/droit-du-travail-ce-que-changent-les-mesures-dexception-face-au-covid-19
14 https://www.eurofound.europa.eu/observatories/eurwork/industrial-relations-dictionary/platform-work; Communication from the European Commission, COM 2016/184.
15 See the 4 categories proposed by R. Botsman and R. Rogers, What’s Mine is Yours, Harper Collins, 2010.
16 S. Abdelnour and D. Meda, Les nouveaux travailleurs des applis, PUF, 2019.
17 A. Adams-Prassl, op. cit.
18 Infra, §IIB.
19 Open Democracy, “How is the platform economy responding to COVID-19?”, https://www.opendemocracy.net/en/oureconomy/how-platform-economy-responding-covid-19/
20 By social protection, we mean the “key function of social protection (which is) is to protect people against the financial implications of social risks, such as illness, old age, accidents at work and job loss, to prevent and alleviate poverty and to uphold a decent standard of living”. Council Recommendation of 8 November 2019 on access to social protection for workers and the self-employed (2019/C 387/01), §8.
21 Ibid., §9.
22 T. Müller and T. Schulten, Ensuring fair short-time work-a European overview, Policy Brief 7/2020, Brussels, ETUI; Eurofound, COVID-19: Policy responses across Europe, Luxembourg, Publications Office of the European Union, 2020; OECD, Distributional risks associated with non-standard work: stylised facts and policy considerations, Tackling Coronavirus Series, 12 June 2020, Paris, OECD Publishing.
23 S. Spasova, Ibid., p. 12.
24 Infra, §IIB.
25 Emergency Law no. 2020-290 of 23 March 2020 0 aimed at dealing with the Covid-19 epidemic, JORF no. 0072 of 24 March 2020, text 2.
26 See the list of social texts in France: https://www.leclubdesjuristes.com/blog-du-coronavirus/textes-autres-sources/droit-social/
27 https://www.vie-publique.fr/dossier/273985-les-ordonnances-covid-19-mars-and-avril-2020-dossier. For a brief summary of the French situation in English, see: N. Moizard, “COVID-19 and Labour Law: France”, Italian Labour Law e-Journal, vol. 13, special issue no. 1, 2020: https://illej.unibo.it/article/view/10782/10690
28 Article R. 5122-1 of the French Labour Code. See R. Dalmasso, «Les trois âges de l’activité partielle», Droit social, July-August 2020, p. 612; S. Tournaux, «Activité partielle en période de crise sanitaire: rupture ou continuité ?», RDSS, September - October 2020, Special issue «La crise sanitaire», p. 954.
29 Dossier «Assurance chômage, un nouveau modèle ?», Droit Social, 2018, p. 580. See also M. Badel, «L’indemnisation du chômage total à l’heure du Covid-19», Dossier «Le droit social à l’épreuve du Covid-19», Droit social, September 2020, p. 687. The 2018 Law for the “Freedom to choose one’s professional future” grants the self-employed an indemnity in the event of the loss of activity. But it excludes entrepreneurs who cannot prove that they have at least two years’ non-salaried activity on behalf of a single company (which is the case of most ride-hailing drivers), as well as “micro-entrepreneurs” with an income of less than €10,000 over the last two years. JORF no. 0205 of 6 September 2018: https://travail-emploi.gouv.fr/le-ministere-en-action/loi-pour-la-liberte-de-choisir-son-avenir-professionnel/
30 https://www.gouvernement.fr/info-coronavirus
31 Except exceptional cases of changes of status, infra §IIB.
32 In addition there are provisions intended to improve the situation of jobseekers following the end of lockdown: non-taking into account of the period of lockdown in the calculation of future entitlements; postponement of the new method of calculating the reference salary (from 1 April to 1 September). Art. D. 2020- 425 14 April 2020, and D. 2020-361 27 March 2020. See also R. Lafore, «Le système de protection sociale à l’épreuve du Covid-19: des constats et quelques enseignements», RDSS, September - October 2020, special issue «La crise sanitaire», p. 981.
33 Art. L. 1222-11 of the Labour Code.
34 For example on training, see Art. L. 6314-1 and L. 6313-11 of the Labour Code, as well as the conditions of implementation of Art. L. 6313-11.
35 R. Lafore, op. cit.
36 Several conditions: to have started their activity before 1/2/2020, have fewer than 11 employees, post a turnover of less than €1 million in the last completed financial year, have a taxable profit of under €60,000 for the last completed financial year, be up to date with the payment of their taxes or social contributions at 31 December 2019. It is also necessary to have been obliged to close due to the public health measures (bars, restaurants, etc.) or to have posted a turnover in March 2020 at least 50% lower than in March 2019 (and so on for the following months). The aid is equal to the difference in the turnover between March 2020 and March 2019, up to a limit of €1,500.
37 M. Badel, «L’indemnisation du chômage total à l’heure du Covid-19», op. cit., p. 687.
38 Decree no. 2020-1048 of 14 August 2020 amending Decree no. 2020-371 of 30 March 2020 on the solidarity fund for companies particularly affected by the economic, financial and social consequences of the Covid-19 epidemic and the measures taken to limit its spread.
39 Decree no. 2020-1328 of 2 November on the solidarity fund for companies particularly affected by the economic, financial and social consequences of the Covid-19 epidemic and the measures taken to limit its spread.
40 Before 31 August 2020 or before 30 September 2020.
41 Decree no. 2021-553 of 5 May 2021 on the adaptation for April 2021 of the solidarity fund for companies particularly affected by the economic, financial and social consequences of the Covid-19 epidemic and the measures taken to limit its spread.
42 Decree no. 2020-1103 of 1 September 2020 on the social contributions and dues of companies, self-employed workers and artist-authors affected by the public health crisis.
43 Aid scheme known as “AFE COVID” specifically for self-employed people whose activity has been interrupted since 2 November 2020 due to administrative closures decided by the public authorities. Depending on the economic situation of the independent business, and if the arrangements introduced by the URSSAFs are not sufficient, it is still possible to apply for the Aid for Contributors in Difficulty (ACED) or the classic Exceptional Financial Aid (AFE). See: https://www.secu-independants.fr/action-sociale/aide-coronavirus/
44 https://www.auto-entrepreneur.fr/actualite/mise-a-jour-de-l-aide-pour-les-auto-entrepreneurs-suite-au-covid-19
45 Order no. 2021-135. A Decree dated 3 June 2021 extended the application of the exemption and aid schemes for the payment of social contributions due for 2020 and 2021 for self-employed workers. See Decree no. 2021-709 of 3 June 2021 on the extension of the measures concerning the social contributions of businesses and self-employed workers provided for by Article 9 of Law no. 2020-1576 of 14 December 2020 on the funding of the Social Security for 2021 and the adaptation of the furlough job-saving scheme for domestic workers and childminders.
46 See Decrees no. 2021-671 and no. 2021-674 of 28 May 2021 adapting the rate of benefit in the event of long-term partial furloughing.
47 Social Security Contributions and Benefits Act 1992 (amended by the Coronavirus Act 2020); Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020; S.230(3)(b) Employment Rights Act 1996.
48 The interruption in working cannot be partial.
49 PAYE (Pay As You Earn) is the income tax withholding scheme of HMRC (Her Majesty’s Revenue and Customs). The J. Hendy, “The Gaps in the Government’s Coronavirus Income Protection Plans”, Institute of Employment Rights, 2020, 1-2, p. 7.
50 Platform workers may have the following statuses: agency workers, those on zero-hours contracts, independent workers, employees, etc. See M. Ford, “The Fissured Worker: Personal Service Companies and Employment Rights”, Industrial Law Journal, vol. 49, no. 1, March 2020, p. 35.
51 Analysis proposed just before the Uber judgment in February 2021 which would create an exception.
52 J. Hendy, op. cit.
53 In English “furlough”; J. Hendy, op. cit.
54 A. Bogg and M. Ford, “Furloughing and fundamental rights”, UK labour law blog: https://uklabourlawblog.com/2020/04/06/furloughing-and-fundamental-rights-the-case-of-paid-annualleave-by-alan-bogg-and-michael-ford/
55 D. Hirst and al, “Coronavirus: support for businesses”, House of Commons Briefing Paper, 3 April 2020, p. 13.
56 K. Bales, “COVID 19 and the Future of Work”, 2 April, 2020: https://legalresearch.blogs.bris.ac.uk/2020/04/covid19-and-the-future-of-work/comment-page-1/
57 See, for example a recent judgment of the Court of Appeal on the right of Deliveroo delivery workers to collective bargaining: Court of Appeal (UK), The Independent Workers Union Of Great Britain V The Central Arbitration committee e- And Roofoods Ltd T/A Deliveroo, 24 June 2021, [2021] EWCA Civ 952.
58 https://iwgb.org.uk/page/support-our-campaign; https://iwgb.org.uk/en/post/iwgb-to-sue-uk-government-over-its-failure-to-protect-precarious-workers
59 The improvement consists of faster payment of the aid, but the persons eligible remain the same as before.
60 Amount available increased to 40% of the income on 24 September 2020, then 80% of that on 31 October 2020.
61 https://www.gov.uk/guidance/claim-a-grant-through-the-coronavirus-covid-19-self-employment-income-support-scheme
62 Insee, “Une photographie du marché du travail en 2019”, Insee Première, no. 1793, February 2020; European Commission, Proposal for a Joint Employment Report, 9 March 2021; M. Matsaganis et al., “Non-standard employment and access to social security benefits”, Note 8/2015, Brussels, European Commission.
63 On the additional condition of not being a student or unpaid trainee in a company.
64 See Law no. 2008-1249 of 1 December 2008 “extending the scope of the Revenu de Solidarité Active and reforming integration policies”.
65 Order no. 2020-312 of 25 March 2020 had automatically prolonged entitlement to the RSA. It allows beneficiaries of the RSA to continue receiving the benefit until 12 September 2020, without reassessing their entitlement. This mechanism was reiterated in Order no. 2020-1553 of 9 December 2020 extending the benefit until 30 April 2021. Entitlements to the RSA will be reassessed after this period, including for the past period.
66 It was €564.78 for a single person with no children after the re-evaluation on 1 April 2020. The re-evaluation on 1 April 2021 led to a slight reduction (from €565.34): See Decree no. 2021-530 of 29 April 2021 re-evaluating the flat-rate amount of the RSA.
67 Decree no. 2020-519 of 5 May 2020 allocating an exceptional health-emergency solidarity grant to the most disadvantaged households, concerning households receiving certain benefits specifically listed in the texts, namely: RSA and RSO in the overseas collectivities, APL and ALF, ASS; and finally the flat-rate return-to-work benefit. The amount of this exceptional grant is €150 per beneficiary, plus €100 per dependent child under the age of 20; those receiving housing benefits only get the grant for children. The allocation of this grant was repeated in October and December 2020 (Decree no. 2020-1746 of 29 December 2020). See also the conclusion of M. Badel, “L’indemnisation du chômage total à l’heure du Covid-19”, op. cit., p. 687.
68 A person aged over 18 years and below the retirement age living in the United Kingdom must have a very low or non-existent income and savings of less than £16,000: https://www.gov.uk/universal-credit/eligibility
69 https://www.understandinguniversalcredit.gov.uk/coronavirus/
70 £409.89 per month, equivalent to €481.
71 Statutory Sick Pay Act 1994: https://www.legislation.gov.uk/ukpga/1994/2/contents
72 Minorities known as “BAME” (Black, Asian and Minority Ethnic workers).
73 https://iwgb.org.uk/page/support-our-campaign
74 https://www.gov.uk/employment-support-allowance
75 For example, in Belfast, it is specified that only those who could not benefit from the self-employed fund could apply for a grant: https://consultations.nidirect.gov.uk/dfi-driving-policy-branch/taxi-drivers-financial-assistance-scheme/
76 R. Marié, «Variations autour du régime juridique des indemnités journalières de sécurité sociale en période épidémique», Dossier «Le droit social à l’épreuve du Covid-19», Part 3, Droit socialSeptember 2020, p. 683.
77 £95.85 per week since 6 April 2020, i.e. less than 30% of the minimum wage; J. Hendy, op. cit.
78 See UK Employment Rights Act 1996, s. 230.
79 https://www.gov.uk/statutory-sick-pay/eligibility. This entitlement is granted as of the first day and not, as normal, the fourth day for those isolating due to suspected coronavirus. It does not cover those who have to isolate for twelve weeks because they are particularly vulnerable.
80 https://iwgb.org.uk/en/post/iwgb-to-sue-uk-government-over-its-failure-to-protect-precarious-workers
81 R. Pellet and A. Skzryerbak, Droit de la protection sociale, PUF, Thémis Droit, 2017, p. 50. Concerning how complementary insurance works: ibid., p. 380.
82 P. Pédrot, «L’accès aux soins des personnes les plus démunies à l’épreuve de la Covid», RDSS, Dossier «La lutte contre la pauvreté à l’épreuve de la crise sanitaire», March-April 2021, p. 255. See also §13 of the preamble to the Council Recommendation of 8 November 2019 on access to social protection for workers and the self-employed, 2019/C 387/01, ST/12753/2019/INIT, OJ C 387 of 15 November 2019, p. 1.
83 See the distinction proposed by S. Spasova, op. cit., p. 22. Furthermore, the question of gender and the fact that women are more often excluded protection schemes must be raised.
84 https://www.uber.com/fr/blog/update-covid-19-financial/
85 Since 4 January 2021: https://riders.deliveroo.co.uk/en/news/latest-covid-19-updates
86 Uber United Kingdom: https://www.uber.com/en-GB/blog/covid-financial-assistance/ ; Uber France: https://www.uber.com/fr/blog/update-covid-19-financial/
87 https://www.bbc.co.uk/news/business-52092722?intlink_from_url=&link_location=live-reporting-story ; https://www.theguardian.com/world/2020/apr/17/uber-driver-dies-from-covid-19-after-hiding-it-over-fear-of-eviction
88 https://riders.deliveroo.co.uk/en/food-safety. The last of these provisions no longer exists. The platform now explains in detail on its site the public measures taken and how to benefit from them.
89 See https://www.uber.com/fr/blog/update-covid-19-financial/, and compare to https://www.uber.com/fr/blog/faq-sur-le-covid-19-pour-les-chauffeurs-and-livreurs/
90 This amount will be different from one city to another. The total amount could not be less than €50 in France. The minimum amount varies according to the country.
91 https://www.uber.com/fr/blog/update-covid-19-financial/
92 Several conditions must be added: the insured person can claim cover if: a) there are aged under 70; b) they are affiliated with the relevant social security scheme; c) they are legally resident and permitted to work in France; and d) they have a valid courier’s contract with the Group Policy Holder to carry out deliveries.
93 https://riders.deliveroo.fr/fr/indemnite-maladie
94 For Deliveroo, see: https://riders.deliveroo.co.uk/en/support/new-riders/what-does-deliveroos-free-rider-insurance-cover
95 https://www.argusdelassurance.com/produits-services/sante-prevoyance/protection-sociale-axa-renforce-son-partenariat-avec-uber.129760
96 On the difficulties adopting the Decree, see M. Badel, “Le Covid au travail par-delà les statuts”, RDSS, special issue “La crise sanitaire”, September-October 2020, p. 937. The occupational illness will only be accepted for a few professions, health profession in particular. Proof must be provided of an acute respiratory disorder. Decree no. 2020-1131 of 14 September 2020 on the recognition as occupational illnesses of conditions linked to an infection with SARS-CoV2, JORF no. 0225 of 15 September 2020.
97 They are also entitled to the payment of a bonus for certain life events (maternity/paternity, jury service).
98 https://uber.app.box.com/s/rcghmolgdqhryr8my54fzwzeeyg5t5sc
99 https://www.uber.com/fr/fr/drive/insurance/
100 (Author’s translation) https://www.uber.com/en-GB/blog/covid-financial-assistance/
101 (Author’s translation), https://uber.app.box.com/s/40il45dto63oz39145ksykw8lalna526?uclick_id=f479f8bc-936c-409d-8 bac-b6e61d756915
102 For example, in the event of an occupational accident during a ride (from accepting a trip and for 15 minutes after it has been completed) or an occupational illness, if medical costs are incurred, a driver will receive “100% of the Social Security reimbursement base for non-hospital care (consultations, examinations), hospitalisation (daily in-patient charge, fees), ambulance transport, or 100% of the Social Security reimbursement base for dentures and medical apparatus”, up to the limits of what is spent. Likewise, they will receive a flat-rate payment of €1,000 in the event of a hospital stay of more than 24 hours: https://uber.app.box.com/s/rcghmolgdqhryr8my54fzwzeeyg5t5sc
103 https://uber.app.box.com/s/rcghmolgdqhryr8my54fzwzeeyg5t5sc
104 https://uber.app.box.com/s/40il45dto63oz39145ksykw8lalna526?uclick_id=f479f8bc-936c-409d-8bac-b6e61d756915
105 https://www.bastamag.net/Uber-Deliveroo-lobbying-Bruxelles-directive-loi-orientation-des-mobilites-workers-independants
106 In Spain, Deliveroo was convicted of defrauding the Social Security, the Spanish courts having considered that some 500 riders working for Deliveroo in Madrid were subject to an employment relationship with the company: Le Monde, 23 July 2019.
107 https://riders.deliveroo.fr/fr/support/toutes-vos-assurances-deliveroo/maladie
108 Y. Pagnerre, «L’impact de la crise sur la protection sociale complémentaire», Droit social, Dossier «Le droit social à l’épreuve du Covid-19», Part 3, September 2020, p. 672.
109 https://www.etuc.org/fr/pressrelease/les-systemes-de-protection-sociale-ont-echoue-au-test-covid-dans-tous-les-pays-de-lue; For more information : https://www.etui.org/publications/non-standard-workers-and-self-employed-eu
110 Eurofound, op. cit. ; OECD, op. cit.
111 C. Okamura, op. cit., p. 12.
112 https://www.gov.uk/government/publications/queens-speech-december-2019-background-briefing-notes
113 ETUC, Red card for platform abuses in the Covid-19 crisis, ETUC documents: https://www.etuc.org/en/document/red-card-platform-abuses-covid-19-crisis
114 Such as the International Labour Organisation (ILO Declaration on Decent Work J.-M. Servais, «L’OIT et le travail décent. La difficile médiation entre croissance, création d’emploi et protection des travailleurs», Revue de droit comparé du travail et de la sécurité sociale, no. 1, 2011, p. 71. At European level, see the European Commission proposal for the European Pillar of Social Rights of 26 April 2017. See also the minutes of the Council of Ministers of 15 February 2017, which mentions that “the third objective aims to protect citizens against the hazards of life at a time when the global economy is undergoing major changes”: https://www.gouvernement.fr/conseil-des-ministres/2017-02-15/le-socle-europeen-des-droits-sociaux
115 A. Supiot, «Seul le choc avec le réel peut réveiller d’un sommeil dogmatique», 21 March 2020, Alter Eco: https://www.alternatives-economiques.fr/alain-supiot-seul-choc-reel-reveiller-dun-sommeil-do/00092216
116 ILO, World Employment and Social Outlook: The Changing Nature of Jobs, 2015.
117 ILO, Work in the time of COVID, May 2021.
118 See the case law saga marked by the judgment of the Employment Division of the Court of Cassation of 4 March 2020 no. 19-13316, and for example L. Bento de Carvalho and S. Tournaux, “Chronique d’actualité du régime juridique du contrat de travail” (Première partie), Droit social, September 2020, p. 736.
119 J.-Y. Frouin, with the assistance of J.-B. Barfety, «Réguler les plateformes numériques de travail», Rapport au Premier Ministre, 1 December 2020.
120 Ibid., p. 46.
121 J. Dirringer and M. Del Sol, «Un rapport mutique sur les enjeux de protection sociale», Droit Social, no. 3, March 2021, p. 223.
122 Conseil National du Numérique (CNNum), Travail, Emploi, Numérique, les nouvelles trajectoires, 2016, p. 79.
123 Vulnerable platform workers who are hit harder as the economic recovery is awaited, could benefit from the maintaining long-term of the attachment to the unemployment benefit regime as well as the flat-rate income support benefits. See R. Lafore, op. cit., and M. Badel, op. cit., dossier pauvreté, RDSS, Marc-April 2021. For a more general reflection, see R. Pellet, «Étatisation, privatisation et fiscalisation de la protection sociale, Bilan pour contribuer à une “refondation radicale”» (Part 1), Droit social, July-August 2020, p. 658; Part 2: Droit social, September 2020, p. 750; L. Gamet, «Des chiffres et des êtres», Droit social, July-August 2020, p. 652.
124 Conseil National du Numérique (CNNum), Travail à l’ère des plateformes. Mise à jour requise, Report 2020.
125 Uber BV v Aslam [2018] EWCA Civ 2748.
126 Independent Workers’ Union of Great Britain (IGWB) and RooFoods Limited TA/Deliveroo, Central Arbitration Committee 14 November 2017 (TUR1/985(2016)).
127 Uber BV and others (Appellants) v Aslam and others (Respondents) [2021] UKSC 5, 19 February 2021.
128 Author’s translation.
129 The Taylor Report published in July 2017 proposed to replace the current category of “worker” with that of “dependant contractor”, based on the degree of control of the worker by the platform. Independent report, Good work: the Taylor review of modern working practices, by M. Taylor, Chief Executive of the Royal Society of Arts, 11 July 2017: https://www.gov.uk/government/publications/good-work-the-taylor-review-of-modern-working-practices
130 R. Crawford and H. Karjalainen, Retirement Saving of the Self-Employed, IFS, 2020: https://www.ifs.org.uk/publications/15103
131 Judgment of the Employment Division of the Court of Cassation of 4 March 2020 no. 19-13316.
132 D. Coyle, Precarious and Productive Work in the Digital Economy. National Institute Economic Review, 2017, 240(1), p. R5. See also A. Adams-Prassl, T. Boneva, M. Golin, C. Rauh, “Inequality in the Impact of the Coronavirus Shock: New Survey Evidence for the UK”, op. cit., p. 13.
133 R. Pellet, op. cit., p. 48.
134 L. Bourgeois, Solidarité, Paris, Armand Colin, 1896.
135 For example, the occupational accident/illness risks and retirement cover have been completed by private complementary insurance schemes which play a more important role than the public system even though they are not obligatory.
136 It is necessary to add the “doctrine of the three Us”: unity, uniformity, universality. See N. Kerschen, «Universalité et citoyenneté sociale», in I. Daugareilh and M. Badel, La sécurité sociale, Universalité et modernité, Approche de droit comparé, chap. 29, Pedone, 2019, p. 451.
137 R. Pellet, op. cit., p. 54.
138 I. Daugareilh and M. Badel, op. cit.
139 See the response of R. Pellet [«L’Europe et la privatisation des Etats providences», Droit Social, no. 2, February 2011, p. 199] to A. Supiot, L’Esprit de Philadelphie, la justice sociale face au marché total, Seuil, 2010, chap. II.
140 The disappearance of the mutual societies in the United Kingdom when the welfare state laws were passed whereas they had played an important role before that has not prevented other types of private insurance from being introduced. R. Pellet, op. cit., p. 54.
141 As far as occupational accidents are concerned, Law no. 2016-1088 of 8 August 2016 on work, the modernisation of social dialogue and the securing of career paths, known as the “El Khomri Law”, requires that intermediation platforms that determine both the characteristics of the service provided (delivery, transport) and the price of the service provided (price scale) take care of occupational accident cover.
142 M. Freedland, «Le contrat de travail et les paradoxes de la précarité», lecture given at the Collège de France, Revue de droit du travail, April 2016, p. 289.
143 Letter sent Uber to consumers: At least the National Living Wage. This is a floor, not a ceiling and drivers will still be able to earn more, as 99% already do.
144 Law no. 2019-1428 of 24 December 2019 on the orientation of mobilities (“LOM”).
145 Special provisions of the LOM concerning car transport or meal delivery platforms of the “above-ground” part of platform working. See K. Van Den Bergh, «La charte sociale des opérateurs de plateformes: «Couvrez cette subordination que je ne saurais voir», Droit social, 2020, p. 439.
146 Bill no. 187 on the protection of self-employed workers by creating a duty of vigilance, the defence of salaried employee status and the fight against pseudo-self-employment, presented by O. Jacquin and al., recorded with the Office of the President of the Senate on 4 December 2020.
147 See new Order no. 2021-484 of 21 April 2021 on the methods of representation of self-employed workers using platforms and the conditions of exercise of that representation, as well as the dossier entitled “Quel avenir pour les plateformes après le rapport Frouin ?” Droit social, no. 3, March 2021.
148 Government’s refusal to act after the Taylor Report, see: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/853886/Queen_s_Speech_December_2019_-_background_briefing_notes.pdf
149 https://www.theguardian.com/business/2021/may/26/uber-agrees-historic-deal-allowing-drivers-to-join-gmb-union
150 According to the expression in the Council Recommendation of 8 November 2019 on access to social protection for workers and the self-employed (2019/C 387/01).
Haut de pagePour citer cet article
Référence papier
Claire Marzo, « Franco-British comparison of attempts to provide social protection for platform workers at the time of the pandemic: towards a new balance between public and private actors? », Revue de droit comparé du travail et de la sécurité sociale, 4 | 2021, 80-99.
Référence électronique
Claire Marzo, « Franco-British comparison of attempts to provide social protection for platform workers at the time of the pandemic: towards a new balance between public and private actors? », Revue de droit comparé du travail et de la sécurité sociale [En ligne], 4 | 2021, mis en ligne le 31 décembre 2022, consulté le 12 juin 2025. URL : http://journals.openedition.org/rdctss/2670 ; DOI : https://doi.org/10.4000/rdctss.2670
Haut de pageDroits d’auteur
Le texte seul est utilisable sous licence CC BY-NC-ND 4.0. Les autres éléments (illustrations, fichiers annexes importés) sont « Tous droits réservés », sauf mention contraire.
Haut de page