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With thanks to Mirjam de Blécourt and Danielle Pinedo for this update.

On June 12, after lengthy negotiations, the EU Council agreed on the proposal for a directive that aims to better protect platform workers. This opens the door to negotiations between the Council and the European Parliament on the final directive.

The directive aims to ensure that platform workers have or can obtain the appropriate employment status through the introduction of a legal presumption. In addition, the directive provides for rules regarding the transparency of the use of algorithms within the platform economy.

Presumption of Employment

The directive introduces a presumption of law, under which platform workers are presumed to be employees if the relationship between platform and platform worker meets at least three of the following seven limitative criteria:

  1. The platform sets upper limits on the worker’s remuneration
  2. The platform sets requirements for the worker regarding appearance, conduct towards the recipient of the service or performance of the work
  3. The platform monitors the performance of work, including by electronic means
  4. The platform effectively limits, including through sanctions, the freedom of the worker to organize their work, regarding the choice of working time
  5. The platform limits, including through sanctions, the freedom of the worker to organize their work, regarding accepting or refusing jobs
  6. The platform restricts, including through sanctions, the freedom of the worker to organize their work, regarding the use of subcontractors or substitutes
  7. The platform restricts the ability of the worker to build a client base, or to perform work for third parties.

In practice, this may result in many platform workers being classified as employees, unless proven otherwise under the rules of the applicable national law.

Algorithmic Transparency

In addition to the legal presumption, the directive grants new rights in respect of algorithms. These rights are mainly about transparency for platform workers, who are entitled to understand how jobs are assigned and how the assessment of work is made. It also attaches greater value on the human touch, by giving platform workers the right to a review of an algorithmic decision that affects working conditions or access to the platform.

Timing

This most recent development means that negotiations (‘informal trialogue’) can now start between the Council of the EU, the European Parliament and the European Commission with a view to reaching agreement on the measures implemented in the proposed Directive and the finalized text. When agreement is reached, the proposed Directive can be formally adopted.

It’s always difficult to know how long these negotiations may take and we will continue to post updates here.