- The Commission proposes a presumption of employment for those working on digital platforms if at least two of five control criteria are met.
- It affects some 28 million people in the Union, and an estimated 5.5 million are wrongly classified as self-employed.
- Spain already has its “rider law”; the directive would set a European minimum, still to be negotiated.
On 9 December 2021 the European Commission presented a proposal for a directive to improve working conditions on digital platforms, accompanied by a communication and guidelines. The core of the proposal is a legal presumption, rebuttable, that a person working through a platform is an employee when the platform meets at least two of five control criteria.
According to Brussels’ figures, more than 28 million people work on digital platforms in the Union, and the number is expected to reach 43 million in 2025. The Commission calculates that some 5.5 million are wrongly classified as self-employed. The proposal also includes rules on algorithmic management of work. If adopted, Member States would have two years to adapt their law.
The presumption of employment
The criteria refer to the platform’s ability to control the person working: for example, setting or capping the level of pay, imposing rules on conduct or how the work is done, supervising performance or verifying the quality of results, including by electronic means, or restricting the freedom to organise work and to build one’s own client base. If two are met, the relationship is presumed to be employment.
The platform can rebut the presumption by showing that the person is genuinely independent, but the burden of proof is reversed: it is no longer for the worker to prove they are an employee. If confirmed as employment, the person would gain rights such as the minimum wage, working-time limits, social protection and the corresponding contributions. The platform, for its part, would assume the obligations of any employer, with the cost and responsibility that entails.
Algorithmic management
The proposal tackles a new matter: work organised, evaluated and sometimes sanctioned by algorithms. It requires transparency about automated systems that monitor or take decisions, human oversight of important decisions, such as an account suspension or dismissal, and the possibility for the worker to ask for an explanation and challenge the decision.
It also limits the processing of certain personal data, such as that relating to emotional or psychological state, and sets information obligations towards workers’ representatives. These rules would apply to everyone who works on platforms, whether classed as employees or self-employed, which widens their reach beyond the question of classification. Trade unions and platforms have received the proposal with very different assessments, which anticipates a demanding negotiation.
What it means for Spain
Spain was a pioneer with Royal Decree-Law 9/2021 of 11 May, the so-called “rider law”, which presumes an employment relationship for delivery workers on platforms whose activity is organised by algorithms, following the Supreme Court ruling of September 2020 that recognised a delivery rider as an employee. The European directive would go further by covering all platforms and not only delivery.
For companies that rely on platforms, or run them, the proposal foreshadows a possible change of model. It is too early to know its final form: it must be negotiated in the European Parliament and the Council, and proposals commonly change during the process. It is worth following its progress and reviewing from now how relationships with service providers are classified and organised. It is also worth going over contracts with self-employed collaborators and the conditions imposed on them, because some of the control criteria are common in service contracting.
Digital work will keep growing, and the rules of the game are being written now.
This article is general information. It is not legal, tax or investment advice, and it does not take anyone’s particular circumstances into account.
