The long-promised, interminably-debated and much-amended
EU Platform Workers Directive has been passed. The final version
delegates key decisions on who is a platform worker to the Member
States, while strengthening controls over automated decision making
and the need for human involvement in decisions affecting
workers.
“Gradually, then suddenly” is how a character in
Hemingway’s novel The Sun also Rises describes going
bankrupt. But this oft-quoted phrase might equally apply to the
passage of the EU’s Platform Workers Directive. After years of
glacial progress and political wrangling, which appeared to have
ground to a halt completely before Christmas, it was suddenly
announced this week that a compromise – and a final text
– had been agreed.
How did we get there in the end? Well, like all good political
compromises, with more fudge than the average Cadbury’s
factory. The main sticking point in the final months had been the
EU’s inability to reach a compromise between countries such as
Spain, which wanted virtually everyone working through a platform
to be a worker, and northern European liberals such as Sweden and
the Baltic States which preferred a much more
“pro-platform”, business friendly approach. And if you
can’t reach an agreement? One solution is to give up trying,
which is essentially what the EU has done, leaving key issues up to
Member States to decide.
Presumptions and how to rebut them
Scroll back to 21 December 2023, when an earlier political
compromise was announced under the Spanish presidency. As we reported at that time, the proposed
directive would have required a presumption of an employment
relationship when two out of a list of five “indicators”
of control or direction were present, such as upper limits on the
amount of money workers could receive, supervision of their
performance including by electronic means, and control over the
distribution or allocation of tasks.
Cue a huge backlash, and the compromise falling apart within a
matter of hours. And it seemed very likely that would be the end of
it, at least until after the EU Parliament elections in May 2024,
until this week, when a resolution was suddenly announced.
Where have we ended up? The revised directive still requires
each Member State to create a legal presumption that a contractual
relationship between a “digital labour platform” and a
“platform worker” is an employment relationship in
certain circumstances. However, rather than prescribing those
circumstances, the directive merely says that this must apply
“when facts indicating control and direction, according to
national law, collective agreements or practice in force in the
Member States and with consideration to the case-law of the Court
of Justice, are found“. In other words, Member States can
fall back on existing (or, as the case may be, newly-created)
national law tests as to what constitutes “control” and
“direction”, merely having “consideration” for
the ECJ’s case-law (which, given the fairly hands off approach that Court has
tended to take to this issue in the past, may not take things much
further forward). Once a presumption has been established,
“it shall be for the digital labour platform to prove that
the contractual relationship in question is not an employment
relationship as defined by the law, collective agreements or
practice in force in the Member States, with consideration to the
case-law of the Court of Justice“. So there will be some
EU-wide harmonisation – but not as much as previously
envisaged.
When does the presumption apply? The answer is “in all
relevant administrative or judicial proceedings where the correct
determination of the employment status of the person performing
platform work is at stake“, although not to
“proceedings which concern tax, criminal and social
security matters” – unless the Member State chooses
to apply the presumption as a matter of national law. Both platform
workers and their representatives are to have the right to start
proceedings to ascertain their status, and “competent
national authorities” – Labour Inspectorates and
their equivalents – will be under a duty to do so when they
think platform workers have been misclassified. Each Member State
will also be required to put in place a “framework of
supporting measures“, guidance (“including in
the form of concrete and practical recommendations, for digital
labour platforms, persons performing platform work and the social
partners to understand and implement the legal presumption
including on the procedures for rebutting it“), and a
regime to allow for “controls and inspections“
of platforms.
Are we all platform workers?
We previously reported on a welcome amendment to
an earlier iteration of the draft directive which reduced the risk
that virtually any company using computers in its business in the
EU to organise work would be considered a platform, with anyone
working for such a company a platform worker. That position has
broadly held in the latest draft, with “digital labour
platforms” still limited to those whose business
“involves the use of automated monitoring or
decision-making systems“.
Having said this, there has been a broadening of the definition
of “automated monitoring systems” to encompass
all “systems which are used for, or support monitoring,
supervising or evaluating the work performance of persons
performing platform work or the activities carried out within the
work environment, including by collecting personal data, through
electronic means”, while “automated
decision-making systems” now means “systems
which are used to take or support, through electronic means,
decisions that significantly affect persons performing platform
work, including the working conditions of platform workers, in
particular decisions affecting their recruitment, access to and
organisation of work assignments, their earnings including the
pricing of individual assignments, their safety and health, their
working time, their access to training, promotion or its
equivalent, their contractual status, including the restriction,
suspension or termination of their account“.
Given the burgeoning use of AI tools in various parts of the
employment relationship even in more “traditional”
employers, the scope for creative arguments that “digital
labour platforms” are not limited to those generally perceived
to be part of the “gig economy” still exists, even if
this is not the EU’s intention. And as a “person
performing platform work” is simply “any
individual performing platform work“, and “platform
work” is, in essence, “any work organised through a
digital labour platform”, there is a certain circularity
– if I fall into the definition of a digital labour platform,
it automatically follows that anyone working through me is a
platform worker and has the rights the directive confers. The EU
has however retained an express exclusion for any platform
“whose primary purpose is to exploit or share
assets” – good news for the likes of AirBnB.
Algorithmic management and automated decision making
We also previously reported on the provision the
directive makes for controls on automated monitoring and decision
making systems. The final text, doubtless influenced by the growing
debate around AI, retains and expands on these: for example, there
is now to be a ban on using these to “predict the exercise
of fundamental rights, including the right of association [and] the
right of collective bargaining”, or to “infer racial or
ethnic origin, migration status, political opinions, religious or
philosophical beliefs, disability, state of health, including
chronic disease or HIV status… emotional or psychological state,
trade union membership, [or] a person’s sex life or sexual
orientation“. There will be a new ban on
“process[ing] any biometric data… of a person performing
platform work to establish that person’s identity by comparing
that data to stored biometric data of individuals in a
database” – meaning so-called
“one-to-many” identity verification will be banned,
although “one-to-one” checks will be allowed (indeed,
encouraged). There will also be a new requirement to carry out a
data protection impact assessment when using automated monitoring
and decision-making systems with persons performing platform work,
and to provide it to worker representatives.
On top of requirements in previous drafts to give platform
workers information about the use of automated monitoring and
decision making systems, other new obligations include giving them
“concise information about the systems and their features
that directly affect them, including their working conditions where
applicable, at the latest on the first working day, prior to the
introduction of changes affecting working conditions, the
organisation of work or monitoring work performance, or at any time
upon their request“, and also on request
“comprehensive and detailed information about all relevant
systems and their features“. Similar information must
also be given to worker representatives.
More generally, the final text of the directive contemplates a
greater role for human involvement in decision making, and for
worker representatives, than was the case with previous drafts. For
example, platforms will now be required to review at least every
two years, with the involvement of worker representatives, the
impact of individual decisions taken or supported by automated
monitoring and decision-making systems used by the platform on
persons doing platform work. If there are no worker
representatives, obligations under the directive can generally be
satisfied by the platform informing its workers directly about
decisions likely to lead to the introduction of or substantial
changes in the use of automated monitoring or decision-making
systems.
There is also an express new requirement that “any
decision to restrict, suspend or terminate the contractual
relationship or the account of a person performing platform work or
any other decision of equivalent detriment shall be taken by a
human being“, along with a new right to “a
sufficiently precise and adequately substantiated reply“
in writing within two weeks of a request of “any decision
taken or supported by an automated decision-making
system“, with the latest text removing an earlier
requirement that that decision be “significant“.
A further new requirement will ensure that platforms take
preventive measures, including effective reporting channels, to
protect workers from violence and harassment. Platform workers will
also enjoy a new right to data portability: to receaive
“without hindrance and in a structured, commonly used and
machine-readable format, any personal data generated through their
performance of work in the context of a digital labour
platform’s automated monitoring and decision-making systems,
including ratings and reviews, to transmit them or have them
transmitted to a third party, including another digital labour
platform“.
What happens next?
There will be a two-year implementation period for Member States
to pass the directive into domestic law. The clock only starts
ticking twenty days after publication in the Official Journal.
Before then, various steps must be taken – the final text
needs to be produced in all languages, and both the EU Parliament
and the Council must adopt the text. It can be reasonably assumed,
however, that while this may take a little time the directive is
now on its way to becoming law.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
#Platform #Workers #Directive #Suddenly #Passed #Employee #Rights #Labour #Relations
