The Directive on improving working conditions in platform work, proposed by the Commission in 2021, is aimed at improving the working conditions of persons performing platform work by ensuring, amongst other things, the correct determination of their employment status and by promoting transparency, fairness and accountability in the algorithmic management of platform work. Platform work is work organised through a digital labour platform, a platform providing a commercial service via a website or app that is performed by an individual based on a contract with the digital labour platform (irrespective of the contractual designation of the relationship). The proposed new law aims to address the perceived problem that many workers in the so-called “gig” economy, such as taxi or delivery drivers, are incorrectly classified as self-employed with the result that that they miss out on important employment and social security protections provided by law.

On 13 December 2023, the European Parliament and Council reached a provisional agreement on the Directive. The agreed text is not yet available but some of the reported changes to the Commission’s original proposal are described below.

Under the original proposal, the relationship between a digital labour platform and a person performing platform work is presumed to be an employment relationship where the platform controls the performance of the work. Such control is deemed to arise when at least two criteria from a list of five are present. These include (as amended by the co-legislators) determining the upper limits of the remuneration the worker can receive, supervising the performance of the work, and control over the allocation of tasks. The co-legislators have agreed that Member States may add further indicators to this list. As in the original proposal, the employment relationship presumption is rebuttable by the platform if it can prove that the relationship is not an employment relationship.

Further, under the original proposal, digital labour platforms would be required to provide information to those performing platform work concerning the use of any automated monitoring systems (used to electronically monitor, supervise or evaluate performance) or automated decision-making (used to take or support decisions that significantly affect platform workers, such as their access to work assignments, earnings and promotions and termination of their accounts). The original proposal requires that these systems are monitored by qualified staff and that platform workers can obtain an explanation of and challenge any decision taken or supported by an automated decision-making system that significantly affects the platform worker’s working conditions. According to reports, the co-legislators have agreed to completely prohibit platforms from processing certain kinds of personal data by means of automated monitoring or decision-making systems including personal data on the emotional or psychological state of the worker, data related to private conversations or data used to predict actual or potential trade union activity.

The Directive must now be endorsed by Member States’ representatives and the Parliament and, if endorsed, will have to be formally adopted by both institutions. Once it enters into force, Member States will have two years to incorporate the provisions of the Directive into their national legislation.

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