On 9 December 2021, the European Commission presented a proposal for a Directive aimed at countering false self-employment at digital labour platforms. Today, over 28 million people in the EU work through digital labour platforms like Uber, Helpling or Deliveroo. In the past period we have seen several court rulings in which the platform workers were not classified as self-employed persons, but as employees. The purpose of this Directive is to give this group of workers more security. Under certain conditions, platform workers will be classified as employees, which entitles them to regular working conditions like a minimum wage, continued payment during illness, and holidays. In addition, the Directive offers all platform workers protection against ‘algorithmic management’.
What exactly does this proposal entail? Below, we will discuss the main aspects.
Contents of the Proposal for a Directive
The proposal regulates the following three aspects of platform labour:
- Employment status
The proposed Directive provides for a number of criteria that can be used to determine whether an employment agreement exists (see below). This way, platform workers should receive the correct classification that corresponds to their actual status. When a platform meets at least two criteria, it will be presumed to be an employer. The parties will still be given the opportunity to provide proof to the contrary. - Algorithmic management
Digital platforms use algorithms. An algorithm can be used to match supply and demand, but is also often used to check on workers. All platform workers (employees and self-employed persons) will receive protection against ‘algorithmic management’. This will make it possible for them, among other things, to object to certain decisions that were automatically generated. Moreover, automated systems will be required to have human monitoring. - Enforcement, transparency and traceability
At present, national governments often lack insight into the work that is being done through digital platforms. When companies operate internationally, this problem is even bigger. This has created the present-day situation, in which it is difficult to monitor compliance with the rules applying to platform workers. The Directive is intended to improve this situation. Among other things, platforms will be confronted with a duty to provide information to the relevant Member State.
Employment Status Criteria
The criteria to be used in order to determine whether a platform worker qualifies as an ‘employee’ are the following:
The platform:
- determines the remuneration or the upper limits of the remuneration;
- determines the appearance of the workers (e.g. platform workwear), or sets rules for conduct towards the recipient of the service or performance of the work;
- supervises the performance of work or the quality of the work (by electronic means);
- restricts the workers’ freedom to choose their own working hours;
- restricts the workers’ freedom to build a client base or to perform work for any other party.
If at least two of the five criteria are fulfilled, it will be presumed that the platform worker is employed by the platform. This proposal also makes it clear that the criteria will have to be applied on the basis of the actual performance of the work. This means that contractual arrangements will not be decisive.
Conclusion
The proposal for a Directive must still be approved by the European Parliament and the European Council, after which Member States will be given two years’ time to implement it. The implementation of the Directive will cause between 1.72 million and 4.1 million people in the European Union to be reclassified as employees.
In addition, up to 3.8 million workers will receive confirmation of their self-employment status. It is also expected that some digital platforms will choose to organise their platforms in such a way that there will be no question of an employment agreement. The Directive will offer real self-employed persons more autonomy and flexibility.
Of course we will keep you posted on developments. Should you have any questions, please contact Soo-ja Schijf.
