On 24 April 2024, the European Parliament adopted new legislation to improve the working conditions of online platform workers. It is set out in the Directive of the European Parliament and of the Council on improving working conditions on online platforms. As many as 554 MEPs voted in favour of the Directive (56 voted against and 24 abstained).

Purpose of the Directive

The Directive aims to improve the working conditions of online platform workers and provide them with protection by ensuring that their employment status is properly established through introducing a presumption of employment and establishing minimum rights applicable to anyone working through online platforms in the EU.

Digital labour platform

The digital platform industry is growing rapidly and has been spilling over, for years, into other professions and sectors of the economy. From the position of customers, one can point out cheaper alternatives to taxis or fast deliveries of food. However, cyclists with colourful backpacks are not everything. Platform work is spreading into further sectors of the economy and also includes services such as translation, data entry and care for children or the elderly. According to a European Commission study of a few years ago, there are already more than 500 active digital platforms on the market and 28 million people are employed in the sector. The European Commission estimates that this number is expected to rise to as many as 42 million by 2025.

In accordance with legislation that the European Parliament has adopted, a “Digital Labour Platform” is each individual or legal person that provides a service that meets all of the following requirements:

• is made available, at least in part, remotely by electronic means, such as a website or mobile application,
• is provided at the request of the recipient of the service,
• includes as a necessary and essential element, the organisation of work which is carried out by individuals for remuneration, regardless of whether the work is carried out online or at a specific location,
• includes the use of automated monitoring or decision-making systems.

What is platform work?

Platform work may be very diverse. It is defined as any work that is organised through a digital labour platform and performed in the EU by an individual based on a contractual relationship between a digital labour platform or intermediary and an individual, regardless of whether there is any contractual relationship between the individual or intermediary and the recipient of the service. Participants of platform work are therefore:

• persons or entities requesting the provision of a clearly defined service involving the provision of labour,
• persons interested in providing such a service,
• a labour platform mediating in the relationship between the two parties.

Presumption of a relationship of employment

At the legislative stage, the most disputed issue was the presumption of an employment relationship. Most platform workers in the EU currently have self-employed status. Data provided by the European Commission shows that nine out of ten platforms currently operating in the EU classify those working through them as self-employed. In an earlier version of the Directive, platform workers were to be automatically treated as employed under a contract of employment (and not self-employed) if their contractual relationship with the platform met at least two of the five conditions set out in the draft of the Directive.

The mentioned five criteria for determining whether a relationship of employment exists are no longer a part of the draft Directive. Currently, the presumption of employment is triggered when facts exist that indicate control and direction in accordance with national law and collective agreements and taking into account EU case law.

The above presumption will not have retroactive effect. For contracts concluded before the Directive’s transposition (and continuing thereafter), the presumption will only apply in the period starting after the Directive’s entry into force.

Furthermore, the presumption will be rebuttable. The Directive requires EU Member States to establish the legal presumption of employment at the national level, which may then be rebutted, with the aim of correcting the imbalance of power between a digital labour platform and the person working through it. The burden of proof is on the platform, which means that it is the platform that must prove that the employment relationship does not exist.

Algorithmic management

The Directive’s provisions are the first in EU history to regulate the use of algorithms in relation to employees. A platform worker will not be dismissible solely through an algorithm or based on a decision made by an algorithm or other automated decision-making system. Under the new rules, platforms will have to ensure that a human being has oversight of important decisions that directly affect employees.

Privacy and data protection

The Directive also regulates the protection of platform workers’ personal data. Digital labour platforms will not be allowed to process certain types of personal data, such as data on emotional or mental state, migration status or personal beliefs.

Two years for national legislation

Once the Directive has been published in the Official Journal of the EU, Member States will have two years to enact the laws, regulations and administrative provisions necessary for its implementation.

Aleksandra Sudak-Przybyła