European Union – Update on a Directive for Platform Workers

It is estimated that more than 28 million persons are working in digital labour platforms across the EU.⁴  One of the central topics in this directive revolves around the correct determination of employment status for platform workers.  The chapter about employment status of platform workers has undergone significant changes from the original proposal for the directive.  The directive will no longer outline elements for detrmining employment status, because that resposnability is now given to each EU member state.

EU member states will establish a legal presumption of employment in their legal systems, to be triggered when facts indicating control and direction are found.  Understanding the relationship between the individual performing services and who controls and directs him/her is essential to the determination of the employment status – is the individual performing services for instance legally employed or self-employed.  Those facts will be determined according to national law and collective agreements, while taking into account EU case law.

Persons working through digital platforms, their representatives, or national authorities may invoke this legal presumption and claim they are misclassified.  The responsibility to prove that there is no employment relationship rests with the digital platform.  

EU member states will provide guidance to digital platforms and national authorities when the new measures are being put in place.  

Algorythmic management contains necessary safeguards for protecting persons performing platform work against the risks linked to the use of automated monitoring and decision-making systems.  These safeguards include, among other things:

• prohibition of processing of certain tupes of data (e.g., personal data on the emotional and psychological state of a person performing platform work, biometric data etc.);
• enhanced transparency on automated monitoring and decision-making systems for persons perforing platform work and their representatives;
• decisions to restrict, suspend, or terminate the contractual relationship or the account of a person performing platform work or decisions of equivalent detriment will be taken by a human being.

Next Steps

The directive will be finalised in all official languages and formally adopted by the Council and the European Parliament.  After the formal steps of adoption are completed, EU-27 member states will have two years to transpose the directive into their national legislation.  

Several media outlets had reported recently that the agreement for rules on platform work fell apart due to EU member states rejecting the proposal.⁵  One of the main complaints was that the criteria set out for the determination of employment status for platform workers were unclear and vague.

In the press release that announces that the agreement is now reached⁶ the chapter concerning determination of employment status for platforms workers is changed significantly and now sets out that the question of employment status for platform workers  will be determined by each EU member state. This will undoubtebly lead to variations from country to country, where some countries will deem a situation as self-employment while others will deem the same working situation as employment,   

Companies that are using services that are performed by self-employed individuals through digital platforms should follow this development closely and may wish to consider assessing if those individuals in their employ have correctly-assigned employment status.