Heightened EU scrutiny of social protection and conditions in platform work

Background

In her Political Guidelines published in 2019, Commission President von der Leyen vowed to “look at ways of improving the labour conditions of platform workers.” This was followed by a declaration of the Council in December 2019, calling on Member States and the Commission to strengthen their efforts, in line with the International Labour Organisation’s Centenary Declaration for the Future of Work.

President von der Leyen, in her address to social partners following the 24 February launch of the consultation, acknowledged that platform workers had been taking extra risks in recent times, continuing to carry out their duties “in person” in order to ensure many of us could continue to stay home. Yet while platform workers were subjected to a higher level of risk, in some cases they lacked basic social protections such as the opportunity to claim sick pay or exceptional social security entitlements.

In November 2020, the Commission organised an exchange of views between social partners on the platform work sector. This was followed in December 2020 by a debate between EU ministers of employment and social affairs, during which the cross-border dimension of this type of work was emphasised as a reason for EU intervention. A commitment to develop a legislative initiative for platform workers was subsequently included in the Commission Work Programme for 2021.

At the same time, national courts have also been grappling with the issue of platform workers, particularly the question of how to define their employment status – or lack thereof. Spain’s Supreme Court recently ruled that "riders" for a digital food delivery platform are employees. In France, the Cour de Cassation ruled that Uber’s drivers were also employees. On the other hand, a Belgian court in 2019 considered that UberX drivers were self-employed. The Commission is concerned that disparity of classification leads to fragmentation of rights across the internal market, causing complications when it comes to cross-border workers.

Key issues to be investigated

According to the Commission's consultation document, there are a number of issues to be investigated regarding platform work, including employment status, transparency and predictability of working conditions and access to social protection.

Platform work is defined as "a form of employment that uses an online platform to enable organisations or individuals to access other organisations or individuals to solve problems or to provide services in exchange for payment". This is distinguished from activities carried out on platforms where services are exchanged for a fee that covers only the cost of providing the services (e.g. car sharing). The characteristics of platform work include the involvement of three parties (the platform, the client and the worker); the organisation of the work through an online platform and;  services provided on demand.

There is also a distinction drawn between on-location labour platforms and online labour platforms. On-location labour platforms refer to a digital labour platform where services are mostly totally carried out in the physical world, including food delivery, ride-hailing, etc. Whereas, online labour platforms refer to services mostly carried out online, including translation services or software development.

• Working conditions
  
  The consultation document notes that those working through online platforms have little control over the terms and conditions attached to their work. Often, changes can be made without notice and there may be no mechanism to dispute or complain about the conditions. As it is common to be paid by the task, rather than the hour, platform workers are often outside of minimum wage legislation. The Commission also cites problems related to working time, since time spent "logged on" to the platform but waiting for work to be assigned is often not paid.
  
  
• Access to social protection
  
  Furthermore, according to the Commission, those working primarily through such online platforms can face difficulties in accumulating entitlements to social security payments. This is also linked to their unclear status as employees or as self-employed, as well as frequent changing of jobs. However, the consultation document also notes that out of the 24 million people who are estimated to have provided services via such platforms, only 3 million have this as their main job. Therefore, it is likely that the remainder can build up entitlements to social security through their other sources of income.
  
  
• Algorithmic management
  
  The Commission also expresses concern that algorithms used by platforms are hiding the real level of economic and legal dependency of the people working in the "collaborative economy". The consultation document emphasises that it is essential to involve workers in the consultation in order to gain insights into the more opaque aspects of platform work and to overcome asymmetry of information. In addition, the consultation document specifically states that it does not address the issue of potential impacts of EU competition law on platform work. 

Next Steps

This first consultation period for social partners will last six weeks, after which the Commission will examine the responses. If the social partners affected don’t wish to enter negotiations at that stage, the Commission will proceed with the second stage before the summer. If no agreement has been reached following this second period of consultation, the Commission will put forward an initiative by the end of 2021. The consultation responses will feed into the Commission's eventual decision of what initiative it will pursue. One thing is clear, with 35-55% of people stating that they intend to continue asking for home delivery “post-COVID”, the situation of platform workers is not a topic that is likely to slip under the radar any time soon.

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