Royal Decree-Law 9/2021, published in the BOE on 12 May 2021, presumes that delivery workers on platforms are employees and requires information on algorithms. It takes effect after three months.
On 11 May 2021 the Council of Ministers approved Royal Decree-Law 9/2021, published in the BOE the next day, which amends the Workers’ Statute to guarantee the employment rights of people working in delivery on digital platforms. The text reflects the agreement reached on 10 March between the Ministry of Labour and Social Economy, the CCOO and UGT trade unions and the CEOE and Cepyme employers’ organisations, and incorporates the reasoning of the Supreme Court ruling of 25 September 2020, which recognised a platform courier as an employee.
What changes
The decree-law adds to the Statute a new additional provision, the twenty-third, which presumes to fall within its scope, that is, to be employment, the activity of people providing paid delivery or distribution services for any consumer product or goods, where the company exercises powers of organisation, direction and control “directly, indirectly or implicitly, through algorithmic management of the service or of working conditions, by means of a digital platform”. It is therefore not limited to food delivery: it covers any product.
It is a presumption, not an automatic classification: the rule makes clear that it does not affect article 1.3 of the Statute, which lists the activities that fall outside employment law. In principle, a presumption reverses the burden of proof: it would be for the platform to show that there is no employment relationship.
Algorithms, in every company
The second change reaches all companies, not only delivery firms. A new letter d) is added to article 64.4 of the Statute: the works council will have the right to be informed by the company of the parameters, rules and instructions on which the algorithms or artificial intelligence systems are based that affect decisions on working conditions, access to and retention of employment, including profiling. It could affect, for example, tools for selecting staff, assigning shifts or evaluating performance.
Labour Minister Yolanda Díaz also announced a group of experts to study the use of artificial intelligence and algorithms in labour relations. According to the minister, the Labour Inspectorate had already reclassified more than 16,000 relationships as employment, with an impact of €29 million.
Deadlines and what to review
Companies have three months: the decree-law takes effect on 12 August 2021. As a measure with the force of law approved by the government, it must be ratified by Congress within thirty days of its promulgation. Deliveroo, Glovo, Stuart and Uber Eats criticised the measure, arguing that it puts the sector’s development at risk, while Just Eat defended it. CCOO called it a step in the right direction, though not ambitious enough because it does not cover all platform work; UGT considered it very important, and groups of couriers rejected it or found it insufficient.
Companies that deliver with their own fleet, through subcontractors or via platforms should review, before 12 August, how the service is organised and what relationship they have with those who provide it. And any company that uses automated tools to select, evaluate or allocate work should know which parameters they use and be able to explain them to workers’ representatives; the processing of personal data in that context also remains subject to data protection rules. Ask your employment adviser how it affects you.
Employment is presumed and the algorithm must be explained: two ideas that go beyond delivery.
This article is general information. It is not legal, tax or investment advice, and it does not take anyone’s particular circumstances into account.
