The workers who provide these services for the platforms (such as delivery drivers and chauffeurs) are often wrongfully categorised as self-employed. In practice, these supposedly self-employed workers are in many cases actually employees, as was the case with Deliveroo, for example. In several EU countries, false self-employment is seen as a problem that needs to be addressed. Therefore, an agreement was recently reached between European ministers of social affairs and employment on a Platform Work Directive. The aim of this directive is to improve working conditions in platform work, provide more effective data protection measures for platform workers, and counter false self-employment.
Under the agreement reached by the ministers, the Directive will contain three main avenues for achieving these goals.
Presumption that platform work is subject to an employment agreement
The Directive will introduce a legal presumption that a person performing work through a platform is performing this work as an employee when there is evidence of authority and management from the platform. This legal presumption aims to facilitate correct determination of the employment status of any workers performing work through a platform. Since this is only a legal presumption, the platform can rebut the presumption by demonstrating that the relationship is legitimately self-employment and not an employment contract.
Rules on the processing of personal data
The Directive contains restrictions on the processing of personal data of platform workers by the platforms through algorithms for automated decision-making or monitoring. This includes a prohibition on processing personal data relating to workers’ emotional or psychological state and private conversations (e.g. conversations with other platform workers). Processing personal data to derive a person’s race, religious beliefs, disability, health status and sexual orientation, among others, is also not allowed. Nor may biometric data (e.g. a fingerprint or an iris scan) be stored in a database. In addition, platforms are not allowed to collect data from the platform worker when that person is not performing platform work.
Restriction on algorithmic management
The Directive will require platforms to notify platform workers about the use of systems or algorithms for automated monitoring or decision-making. This includes systems already in use as well as those that may be introduced. The platform must be transparent about the purpose of monitoring and how it is realised. Platforms will be required to implement human monitoring and supervision of automated systems. As part of this requirement, platforms must assess the impact of decisions made by algorithms at least once every two years.
Under the Directive, certain decisions may no longer be made by algorithms. Important decisions, for example dismissal, work reduction, wage stoppage, or other decisions affecting essential aspects of the employment relationship must be taken by human oversight. This includes decisions that limit, suspend or close the platform worker’s access to their account. Platform workers must be given the opportunity to request the platform to review any such decision. The platform will then be required to provide a reasoned written response within two weeks.
Takeaway for employers
The proposal on the Directive is yet to be formally ratified by the European Parliament. After that, member states will have two years to implement the directive. Given the long lead time required for changes to complex data collection and automated management systems, companies with a platform-based business model should begin making these changes sooner than later.
*Bronsgeest Deur Advocaten
