A ‘rebuttable presumption of employment’ is emerging as a response to platforms denying their workers employee status.
The labour status of people working in the online platform economy is key to their socio-economic protection. But it has proven a difficult issue for courts and regulators. The European Union is considering introducing a ‘rebuttable presumption of employment’ to help address this problem. What could this entail exactly?
For some time, one of the hottest topics in the world of work has been online platform work. Online platform jobs can present opportunities, lowering barriers to labour-market integration and moving activities out of the shadow economy. But there are also clear challenges. Most importantly, this type of work often entails a high degree of precariousness.
In recognition of this, the European Commission is planning to take action to ensure dignified working conditions and adequate social protection in platform work. In its first-stage consultation of the social partners, the commission has identified areas in which improvements may be needed, including employment status; working conditions, including health and safety; access to adequate social protection; access to collective representation and bargaining, and algorithmic management.
The crucial element is undoubtedly whether people working via online platforms are to be regarded as ‘workers/employed’, with the attendant rights under EU and national law, or instead as ‘independent contractors/self-employed’—most other issues are directly dependent on labour status. As they are often formally contracted by the platforms as independents and have working arrangements that do not always correspond clearly to a traditional employment relationship, online platform workers have been difficult to classify in many jurisdictions. While national courts seem increasingly confident to (re-)qualify online platform workers as employed, they may feel that under the current legal framework(s) they have to fit a square peg into a round, or at least triangle-shaped, hole.
As a possible way forward, the commission suggests introducing a rebuttable presumption of employment. This could provide an elegant solution, which would significantly shift, although not totally tilt, the legal balance in favour of socio-economic protection of online platform workers. It would mean that the majority of online platform workers would receive the protection that workers/employed receive under EU and national law, filtering out the false self-employed, while leaving scope for the possibility of genuinely self-employed working via platforms without imposing worker status or treatment on them.
What could that look like, concretely? Some tangible suggestions follow for the key provisions of a possible directive on the labour status of online platform workers.
Article 1: Application of EU law to online platform workers
Online platform workers are entitled to all the rights and protections applicable to workers under EU law, unless their relationship to the platform clearly does not feature the essential characteristics of an employment relationship and they are to be regarded as self-employed in light of, in particular, their full autonomy in terms of the pricing, organisation and execution of the work in question.
Article 2: Application of national labour protections to online platform workers
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- Member States shall ensure online platform workers all the rights and protections under the relevant national law applicable to persons with an employment contract.
- By way of derogation to paragraph 1, member states may decide to disapply the relevant provisions of national law to those online platform workers whose relationship to the platform clearly does not feature the essential characteristics of a work relationship and who are to be regarded as self-employed in light of, in particular, their full autonomy in terms of the pricing, organisation and execution of the work in question.
Article 153(b) of the Treaty on the Functioning of the European Union (TFEU) would be the most likely legal basis for a measure containing the above provisions. While the issue of labour status is sensitive with the member states, the obligation to apply national labour laws and protections to certain groups of atypical workers (by requiring equal treatment in relation to working conditions) is central to various already-existing EU directives, such as on fixed-term, part-time and temporary agency work.
In addition to a rebuttable presumption of employment, the EU measure could provide specific protection for all online platform workers—including those that are genuinely self-employed. It is not impossible to argue that article 153 TFEU could be used to improve the working conditions of the self-employed. This is, however, not entirely certain, as it could also be said that, for such additional protection concerning the self-employed, article 53 TFEU applies, or that article 352 TFEU would have to be added. The question of legal basis would be for further exploration but if it were decided to provide additional protection for all online platform workers it could look like the following:
Article 3: specific protections for online platform workers
Member states shall ensure that the functioning of online platforms complies with the rights and principles contained in the EU Charter of Fundamental Rights. In particular, the activities of online platforms must fully respect the fundamental principles and rights to fair and just working conditions, non-discrimination, transparency, data protection and consumer protection. This includes the design, operation and application of algorithms, for which the online platform is fully responsible.
The merit of this approach lies not just in its capacity to tackle efficiently precariousness in the online platform economy. It lies in its acknowledgement that, to protect workers in what is often called the ‘new’ world of work, the ‘old’ rules and existing protections are usually the best tools.They may need some updating and tweaking for best results but, most importantly, it needs to be made clear that they, quite simply, apply
This no-nonsense approach rejects the omnipresent but shallow narratives of technological exceptionalism, which trade on the idea that the ‘digital revolution’ has made labour codes, and other important norms, redundant. To the contrary, it has underlined their primordial importance.
This first appeared on the Progressive Post
Sacha Garben is a professor of EU law at the College of Europe. She is on leave from the European Commission, where she worked on EU labour law until joining the college in 2015. She has published inter alia on the division of competences between the EU and the member states, the balance between social and economic rights in the EU legal order and the European Pillar of Social Rights.