Three unanswered questions about the EU Directive on gig work

8 February 2022

In December 2021, the European Commission set out long-anticipated plans to regulate platform work. The proposed Directive seeks to improve conditions in platform work and follows much concern and interest at EU level around gig worker rights and protection, as well as growing numbers of protests.

Citing a growing body of research evidence, including our own CERIC research commissioned by the European Parliament on The Social Protection of Workers in the Platform Economy, the Directive seeks to ensure fair and transparent working conditions in gig work. It looks to: address the widespread misclassification of gig workers as self-employed; ensure better information and accountability in algorithmic management processes in platform work and improve enforcement of rules in the platform economy.

But will the Directive address the long-standing challenges of regulating the often-complex working arrangements and contractual forms that characterise the gig economy? Here we pose 3 key questions about the scope and likely impact of the Directive:

1 Will all platform workers be protected?

The Directive has a deliberately wide scope to try and encompass more workers in more platform-based types of employment. It seeks to cover those involved in both  ‘local’ (e.g. ride hailing, food delivery) and ‘global’ (online task-based) platform labour markets. This local versus global aspect is a key distinguishing feature of gig work that we identified in our research, and which profoundly shapes the experience of work and access to rights.

The Directive sets out a number of ‘control’ tests to determine whether a platform actually controls the conduct and performance of work. For those that do, there will be a presumption of employment status between worker and platform. Estimates suggest as many as 8 million platform workers may currently be misclassified as self-employed, and many of these will be covered by the provisions in the Directive.

As others have noted, this is likely to include most ‘local’ forms of platform work, and some in online task-based platform work. But in cases where it is deemed that the platform does not control the performance of work, gig workers may remain outside of protection. However, many platforms use algorithms and processes that actually obscure the extent to which they are actively involved in any day-to-day management or control of work. Indeed, algorithmic aspects of decision making on platforms have been the basis of a small number of protests about conditions in platform work.

Whilst the Directive explicitly seeks to ‘get behind’ these algorithms to ascertain the reality of control, it seems likely that some platforms that market themselves as ‘neutral’ labour market intermediaries will slip through the net.

2 Will the presumption of employment status mean protection for gig workers in practice?

The European Commission argues that platform workers will, under the Directive, have rights to a minimum wage, coverage through working time regulations, occupational safety and health protection, equal pay entitlements, and improved access to social protection against work accidents, unemployment, sickness and old age. Many of these rights are already enshrined in EU or national-level laws and provisions.

Yet, our research for the European Parliament highlighted some of the challenges of ensuring protection for platform worker in practice. Many national-level forms of social protection, such as access to health insurance, unemployment income support, and statutory pension provision, are dependent upon earning minimum levels of income, or meeting a threshold of predictable weekly working hours.

Therefore, despite the Directive, many platform workers are likely to continue to face de facto exclusion from rights as their gig work is characterised by low and unpredictable income and hours.

Furthermore, our survey of platform workers in Europe revealed that access to social protection often came from another ‘regular’ job that workers hold alongside their platform work. Workers who earned 50% or more of their income from platforms were the least likely to have access to a range of social protections. The realities of gig working for many involves working via multiple platforms, , alongside other jobs, and with unpredictable hours and income. The Directive will help ensure access to existing social protections according to national rules, but further regulation might be needed to address the particular nature of platform working. This could include: the removal of minimum income requirements to access social protections; the development of more flexible social insurance contributions; and the creation of instruments that ensure the portability of gig worker entitlements across employers and intermediaries.

3 Are the proposed mechanisms for monitoring strong enough?

The proposed Directive on platform work will make it clearer whether there is an employment relationship between worker and platform, but the specific responsibilities that will fall upon platform hosts/organisers are still somewhat unclear. Furthermore, the forms that monitoring and inspection will take, and the specific information that will need to be provided by platforms are yet to be set out.

What responsibilities will a platform operating across a range of EU countries have for an EU-based worker who undertakes tasks for a range of clients within and outside Europe? If platform workers operate across a range of platforms, will there be mechanisms for ensuring that access to social protections are calculated across all platforms?

Robust monitoring and inspection is likely to have a crucial role to play in ensuring that information on platform working is provided to relevant authorities. Articles 6 to 10 in the Directive set out provisions around the monitoring of algorithmic management, whilst Articles 16 and 19 require platforms to provide information to relevant national and EU authorities. Will these be enough to ensure greater protection?

However, our research has pointed to significant obstacles in obtaining data from platforms about the work that they mediate. The European Parliament has also consistently highlighted the importance of ‘traceability’ of activities undertaken via online platforms, driven by tax compliance and enforcement requirements, with the Digital Services Act placing some further obligations on platforms.

To address these concerns, an EU Inspectorate with specific responsibility for platform work standards and rights is now needed.

Platforms should be compelled to supply any such Inspectorate with appropriate and sufficient information to inform policy development around social protection and rights for gig workers. Compliance also needs to be monitored and evaluated under their remit.

Only then will ‘theoretical’ protection for platform workers be translated into effective protection in practice.

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