On 9 December 2021, the Commission launched a legislative proposal to improve the working conditions of people working through digital labour platforms, such as Deliveroo and Uber (Eats). The proposal seeks to ensure that persons working through digital labour platforms can enjoy the labour rights and social benefits they are entitled to. Therefore, in the first place, the proposed directive has the aim to end the legal uncertainty regarding the employment status of platform workers. Secondly, it includes an additional protection with regard to the use of algorithmic management by the digital platforms.
In this article, we highlight the most significant aspects of the legislative proposal. The proposal will now be sent to the Council and the Parliament for approval (using the normal legislative procedure). In the course of this legislative process, it is very likely that certain aspects of the proposal will be amended, especially since the Commission took quite a bold position against certain practices of digital platforms. It can also not be excluded that this proposal will never make it into a Directive, if the Council and Parliament fail to adopt a text which can receive the necessary majorities.
Determination of the correct employment status
In order to give platform workers the correct employment status in light of their actual relationship with the digital labour platform, so they can gain access to the applicable labour and social protection rights, the draft directive provides a list of control criteria to determine whether the platform is an “employer”. If the platform meets at least two of those criteria, it is legally presumed to be an employer. The proposed criteria are:
- effectively determining, or setting upper limits for the level of remuneration;
- requiring the person performing platform work to respect specific binding rules with regard to appearance, conduct towards the recipient of the service or performance of the work;
- supervising the performance of work or verifying the quality of the results of the work, including by electronic means;
- effectively restricting the freedom, including through sanctions, to organise one’s work, in particular the discretion to choose one’s working hours or periods of absence, to accept or to refuse tasks, or to use subcontractors or substitutes; and
- effectively restricting the possibility to build a client base or to perform work for any third party.
The Digital platform can rebut the legal presumption using the national legal framework for the determination of the employment status, but it carries the burden of proof, and the legal or administrative proceedings to rebut this presumption shall not have suspensive effect on the application of the legal presumption.
The proposal also introduces some measures to manage the use of algorithms by the digital platforms. The majority rules will benefit all platform workers, even if they are considered to be self-employed. First, the proposal provides an information obligation for the digital platforms towards the workers, regarding the existence and work of algorithms which they use as automated monitoring systems and automated decision systems. In any case, the Commission wants to avoid an exclusively automated decision system as it introduces some obligations to i.e., evaluate these systems and it prohibits the use of algorithms, which put undue pressure on platform workers. Digital platforms will have to provide sufficient human resources for monitoring the impact of individual decisions taken or supported by automated monitoring and decision-making systems. Furthermore, the platform workers will have a right to a human review of significant automated decisions which impact their working conditions, and they can request a written statement explaining the motives of the decision.
Member States also have to make sure the platform workers and their representative organisations have access to effective and impartial dispute resolution and a right to redress. There should also be a way for the platform workers to communicate with each other, effectively enabling them to organise and possibly create representative organisations or trade unions. Furthermore, in legal proceedings, national courts will have the power to order the digital platforms to disclose any information which is necessary to e.g. prove the actual employment status of the platform workers. Lastly, the proposal provides a protection for the platform workers against adverse treatment or consequences, and against dismissal, e.g. in case they filed a complaint with or against the digital platform. Member States will also have to lay down effective penalties for digital platforms that do not comply by the rules. If the Directive is passed, Member States will have two years to implement the Directive into national law.
Guidelines for collective bargaining by solo self-employed persons
Besides the legislative proposal, the Commission has launched a public consultation on draft guidelines on the application of EU competition law to collective agreements of solo self-employed people, e.g., people who work completely on their own and do not employ others (e.g. freelancers). These draft guidelines aim to bring legal certainty and make certain that EU competition law does not stand in the way of particular solo self-employed people’s efforts to improve, collectively, their working conditions, including remuneration, in cases where they face a significant imbalance in bargaining power. The draft Guidelines cover both online and offline situations.