In 2021, the European Commission proposed a Directive on improving working conditions in platform work by ensuring, amongst other things, the correct determination of platform workers’ employment status and by promoting transparency, fairness and accountability in the algorithmic management of their work. This was the Commission’s attempt to regulate the growing gig economy. Details of the proposed Directive were previously reported by Wiggin.

As also previously reported by Wiggin, negotiators for the European Parliament and the Council of the EU reached a provisional agreement on the text of the proposed Directive twice, once in December 2023 and again in February 2024. In both cases these provisional agreements were rejected by EU Member States. However, according to reports, on 11 March 2024, Member States’ employment and social affairs ministers agreed the text that was proposed in February.

The main area of contention is the Commission’s proposal that 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. A digital labour platform is a platform providing a commercial service via a website or app at the request of recipients of the service, performed by an individual based on a contract with the platform. Control by a platform would be deemed to arise when two out of five criteria from a fixed list are met. The criteria included setting the level of remuneration, supervising the work, verifying the quality of the work, and restricting freedom to organise one’s work (e.g. hours or absence). The text that has now been agreed amends this provision by deleting the criteria proposed by the Commission and, instead, stipulating that Member States will establish the legal presumption of employment within their own legal systems, to be triggered when facts indicating control and direction are found. Those facts will be determined according to national law and collective agreements, while taking into account EU case-law. Persons working on digital labour platforms, their representatives or national authorities may invoke the legal presumption or claim they are misclassified. Member states must also provide guidance for all parties concerned to understand and implement the legal presumption. As in the original proposal, where the digital labour platform seeks to rebut the legal presumption, it is up to the platform to prove that there is no employment relationship. These changes to the provisions around the legal presumption of employment are aimed at addressing the concerns of some Member States that the Commission’s approach would have clashed with existing Member State employment law and platform regulation and might have caught those who are genuinely self-employed.

The agreed text will now have to be formally adopted by the Parliament and Council and there is a two-year period to implement the provisions into the laws of Member States once the Directive comes into force.

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