Draft directive on platform work
At the beginning of December 2021, the EU Commission presented a draft directive on improving working conditions in platform work. The aim of the draft is to ensure legal certainty and transparency for the roughly 28 million platform workers currently working in the EU.
Digital labour platforms seem to be the trend. They offer their customers – usually via an app – various services “at the push of a button”, e.g. the delivery of goods or the provision of cleaning or care services. Currently, over 28 million people in the EU work via digital labour platforms. This number is expected to increase to 43 million by 2025. Many of these platform workers are self-employed. However, it is estimated that up to 5.5 million people who provide services via digital labour platforms could be classified as “false self-employed”.
Digital labour platforms also often use automated systems. Tasks are assigned to platform workers and the performance of the tasks is monitored or evaluated based on algorithms. The EU Commission considers the transparency of such systems to be insufficient.
The key aspects of the draft directive are legal certainty regarding the legal employment status of platform workers as well as greater transparency in the use of algorithms by platform operators.
1. Legal employment status
With regard to the legal employment status, a rebuttable presumption of the existence of an employment relationship shall apply if at least two of the following criteria are met by the relevant digital labour platform:
- It sets the amount of, or an upper limit for, the level of remuneration;
- It determines specific binding rules with regard to appearance and conduct;
- It supervises the performance of work, including by electronic means;
- It restricts possibilities to freely choose one’s working hours or periods of absence, to accept or to refuse tasks or to use subcontractors or substitutes;
- It restricts the possibility to build a client base or to perform work for any third party.
If the presumption applies, the platform operator must prove that the contractual relationship in question does not actually qualify as an employment relationship.
2. Transparency in the use of algorithms
In order to increase transparency in the use of the platform for the persons concerned, information rights are to be created. Platform workers will also be given the right to have automated decisions reviewed by a real person if the decision in question has a significant impact on their working conditions. For decisions by the platform regarding the restriction, suspension or termination of the platform worker’s account, the refusal of remuneration for work performed by the platform worker, the contractual status of the platform worker or for any decision with similar effect, the draft provides that the person concerned must be given a written statement of reasons. The platform worker concerned may request a review of such decisions.
The transparency rules apply to both employed and self-employed platform workers.
Gleiss Lutz comments
It will be interesting to see how the situation evolves based on the draft directive. The next step would be for the legislator to transpose the directive into national law. Here it seems conceivable that the introduction of a rebuttable presumption could also serve as a template for the legal employment status of workers in other industrial sectors. Depending on how the criteria for determining whether the presumption applies are set up, this could be a way to increase legal certainty for the important issue of differentiating between employees and freelancers and to minimise the associated risks – under social insurance and criminal law – of having to make retroactive contributions on pay.