Sacha GARBEN

The labour status of people working in the online platform economy is key to their socio-economic protection. But it has proven a difficult issue for courts and regulators. The EU is considering introducing a ‘rebuttable presumption of employment’ to help address this problem. What could this entail exactly? 

For some time now, one of the hottest topics in the ‘world of work’ has been that of online platform work. Online platform jobs can present opportunities, in terms of lowering barriers to labour market integration and moving activities out of the shadow economy. But there are also clear challenges. Most importantly, this type of work often entails a high degree of precariousness. 

In recognition of this, the European Commission is planning to take action to ensure dignified working conditions and adequate social protection in platform work. In its first stage consultation of social partners, the Commission has identified a number of areas in which improvements may be needed, including (i) employment status; (ii) working conditions, including health and safety; (iii) access to adequate social protection; (iv) access to collective representation and bargaining, and (v) algorithmic management. 

The most crucial element is undoubtedly the first: the question whether the people working via online platforms are to be regarded as ‘workers/employed’ with the attendant rights under EU and national law, or instead as ‘independent contractors/self-employed’, as most other issues are directly dependent on that question of labour status. As they are often formally contracted by the platforms as independents and have working arrangements that do not always correspond clearly to a traditional employment relationship, online platform workers have been difficult to classify in many jurisdictions. While national courts seem increasingly confident to (re-)qualify online platform workers from self-employed to employed, they may feel that under the current legal framework(s) they have to fit a square peg into either a round or a triangle-shaped hole. 

As a possible way forward, the Commission suggests introducing a rebuttable presumption of employment. This could provide an elegant solution, that would significantly shift but not totally tilt the legal balance in favour of the increased socio-economic protection of online platform workers. It would mean that the majority of online platform workers would receive the protection that workers/employed receive under EU and national law, filtering out the false self-employed, while leaving scope for the possibility of genuinely self-employed working via platforms without imposing worker status or treatment on them. What could that look like, concretely? Here are some tangible suggestions for the key provisions of a possible Directive on the labour status of online platform workers.

Article 1: Application of EU law to online platform workers

Online platform workers are entitled to all the rights and protections applicable to workers under EU law, unless their relationship to the platform clearly does not feature the essential characteristics of an employment relationship and they are to be regarded as self-employed in light of, in particular, their full autonomy in terms of the pricing, organisation and execution of the work in question. 

Article 2: Application of national labour protections to online platform workers

1. Member States shall ensure online platform workers all the rights and protections under the relevant national law applicable to persons with an employment contract.
2. By way of derogation to paragraph 1, Member States may decide to disapply the relevant provisions of national law to those online platform workers whose relationship to the platform clearly does not feature the essential characteristics of a work relationship and who are to be regarded as self-employed in light of, in particular, their full autonomy in terms of the pricing, organisation and execution of the work in question.

Article 153(b) of the Treaty on the Functioning of the European Union (TFEU) would be the most likely legal basis for a measure containing the above provisions. While the issue of labour status is sensitive with the Member States, the obligation to apply national labour laws and protections to certain groups of atypical workers (by requiring equal treatment in relation to working conditions) is a central one in various already existing EU directives, such as on Fixed-Term, Part-Time and Temporary Agency Work.

In addition to a rebuttable presumption of employment, the EU measure could provide specific protection for all online platform workers –including those that are genuinely self-employed. It is not impossible to argue that Article 153 TFEU could be used to improve the working conditions of the self-employed. This is, however, not entirely certain, as it could also be said that for such additional protection concerning the self-employed, Article 53 TFEU applies, or that Article 352 TFEU would have to be added. The question of legal basis would be for another piece to explore in more detail, but if it were decided to provide additional protection for all online platform workers, it could look like the following provision:

Article 3: Specific protections for online platform workers

Member States shall ensure that the functioning of online platforms complies with the rights and principles contained in the EU Charter of Fundamental Rights. In particular, the activities of online platforms must fully respect the fundamental principles and rights to fair and just working conditions, non-discrimination, transparency, data protection and consumer protection. This includes the design, operation and application of algorithms, for which the online platform is fully responsible.

The merit of this approach lies not just in its capacity to efficiently tackle the issue of precariousness in the online platform economy. It lies in its acknowledgement that to protect workers in what is often called the ‘new’ world of work, the ‘old’ rules and existing protections are usually the best tools.They may need some updating and tweaking for best results, but most importantly, it needs to be made clear that they, quite simply, apply. This no-nonsense approach rejects the omnipresent but shallow narratives of technological exceptionalism that trade on the idea that the ‘digital revolution’ has made labour codes, and other important norms, redundant. To the contrary, it has underlined their primordeal importance.

Related articles:

• Turning the clock forward by Ursula Huws

• “Like a boss” – management by algorithm is taking over at the workplace by Valerio de Stefano and Antonio Aloisi

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• What digital future for what Social Democracy? by Evgeny Morozov