Overseas snippets

Uber drivers in France are employees

The French Court of Cassation (the highest civil court in France) has held that Uber drivers are employees. In France, the existence of an employment relationship may be established where “persons provide services under terms and conditions placing them in a relationship of permanent legal subordination with regard to the principal.”

The Court said that Mr X, the Uber driver, was not able to freely decide the organisation of his operations, seek out clientele, or choose his suppliers. His fares were set by Uber’s algorithms as were the routes that he took when driving. The app supervised his routes (it could adjust the fare if he took an “inefficient route”) and could deactivate him if he did not accept rides. The ability to be deactivated by Uber incited him to remain connected and at Uber’s disposal – as opposed to being free to choose his rides as a truly independent driver could.

The Court found that Mr X held a “fictitious status” as an independent worker and was in fact an employee.

Potential reputational damage justifies dismissal

The UK Employment Appeal Tribunal has found that an employer was justified when dismissing an employee on the basis of reputation concern despite the employee not yet having faced trial

Mr L was charged with a serious sexual offence. His employer was a registered charity that owned and operated hospitals throughout the UK. Mr L was employed as a hospital porter.

His employer was concerned about the reputational risk the charge might cause, especially as Mr L had access to vulnerable patients. Mr L was dismissed but was advised that he would be reinstated if acquitted of the charge. Mr L challenged his dismissal. The Employment Tribunal was satisfied the employer had undertaken a fair investigation, its concerns about potential reputational damage were sincerely held, and that dismissal was a reasonable option open to the employer.

The Appeal Tribunal agreed. Where an employer dismisses an employee for potential reputational reasons relating to a criminal charge, there must be a relationship between the potential damage to reputation and the charge. In this case the relationship between the sexual offence and the risk to reputation was obvious due to Mr L’s access to vulnerable and anaesthetized patients.

Necklace grab the result of negligence

An Australian Michael Hill Jeweller employee was successful in her claim for damages for personal injuries which the District Court of Queensland found were caused by Michael Hill’s negligence.

The employee, a sales assistant, removed a $13,000 necklace from its display cabinet for a customer. The customer asked to hold the necklace which prompted the employee to ask to see his driver’s licence. The customer attempted to grab the necklace out of the employee’s hands. The necklace broke and the customer fled. The employee suffered minor injury to her hands and subsequently developed significant psychiatric injuries including panic attacks and anxiousness.

Michael Hill said the employee had failed to follow a sales procedure focused on engaging with the customer to ascertain interest in the jewellery before negotiating price. Michael Hill said this procedure slowed the sales process and assisted with sales and security, but conceded the procedure was identified to employees as a sales procedure only (rather than a safety one). Michael Hill also had a procedure where employees asked to see customer’s identification when wanting to inspect jewellery worth more than $20,000 (which did not apply in this case).

The Judge said the hypothetical precautions submitted by the employee, such as installing security doors and guards, were not reasonably practicable. However, the Judge concluded a reduction in the value limit to $2,000 (from $20,000) for the identification process was not overly expensive or onerous and a reasonable person would have adopted that policy against the foreseeable risk of a robbery. The Court held Michael Hill liable for negligently causing the employee’s injury.

The Court drew a distinction between policies which are flexible such as sales procedures, and policies which are mandatory such as those designed to protect safety. Employers must ensure employees understand whether policies are flexible or mandatory. This is especially important when policies are designed to serve dual purposes (such as Michael Hill’s procedure to slow sales).

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