More than two years have passed since the European Commission first presented its proposals for an EU Platform Work Directive and after endless negotiations within the Parliament and the Council, it seems a deal has finally been done.
The main point of contention in the final negotiations, surprisingly, was not over regulation of algorithmic management but over a legal presumption of employment.
The Commission had originally recommended that an employment relationship should be presumed when at least two of the following conditions indicating control and direction of workers by a platform existed:
the platform effectively set upper limits of remuneration of workers
the platform imposed rules on workers regarding appearance, conduct towards service user and performance of work
the platform supervises work and verifies quality of work
the platform sanctions workers to restrict hours of work, to accept or refuse work and to employ substitutes
the platform restricts the ability of workers to build a client base or to perform work for any third party
During the trilogue negotiations, the Council demanded the elimination of the presumption of employment based on the conditions set out above. Instead the Council wanted a presumption of employment based on facts of control and direction to be determined by local law of the member states. In other words, the directive was to be non directive on this critical point.
On the one hand, this seemed a retrograde step. Twenty seven member states will now individually decide whether an employment relationship exists for gig workers but without the common guidance of an EU directive on what might indicate such a relationship. On the other hand, in our view, it has been most fortunate that the five tests of employment above were eventually abandoned. Platforms already engage in crude plausible deniability of the above five factors while maintaining firm direction of and control over gig workers.
In the final days of the negotiations, France, Germany, Estonia and Greece almost scuppered a deal by withdrawing their support for even the compromised deal. France wanted to water down the presumption of employment further still which was blankly rejected by the European Parliament.
In the end, the governments of Estonia and Greece relented and lent their support to the directive which was enough to carry the day. Germany continued to abstain leaving France alone to oppose the directive to the end. That so much time and attention was paid to determining whether a cab driver or food delivery worker is to be determined as a worker or a bucking entrepreneur tells us much about the moral bankruptcy of our political leaders. As the Central Employment Tribunal noted in its 2016 ruling, later upheld by the UK Supreme Court:
The notion that Uber in London is a mosaic of 30,000 small businesses linked by a common 'platform' is to our minds faintly ridiculous.
If it looks like a worker, talks like a worker, walks like a worker, works like a worker......
The algorithmic management chapters of the directive remain largely unscathed by the negotiations process. There are sensible prohibitions on processing data of workers relating to emotional state, communications of workers with their trade union, the collection of data from workers when not working, to infer social identity, to predict or monitor the exercise of fundamental rights including the right of association. Much of the algorithmic protections rightly apply to all workers regardless of eventual employment status.
There are good controls on the requirements for consultation and transparency regarding automated decision making. However, regulation in this area perhaps quaintly harkens back to a by gone era when big systems were designed, tested, implemented and then frozen in time. Whether the regulation is nimble enough to confront the today's reality of constant changing AI/ML dynamic systems, such as those used currently by platforms for the setting of pay rates and task allocation, remains to be seen.
WIE successfully litigated against Uber under provisions of the GDPR and the Amsterdam Court of Appeal ordered much greater transparency on automated systems for pay, pricing, work allocation and performance related dismissals. There have also been successful worker claims across Europe.
However, the achilles heel here is that employment law and data protections are already poorly enforced across Europe. Without the strong mandate of an EU directive to give strong direction on protection of employment rights, will the member states now step in where they have not before? It should not be left to workers to privately litigate in the absence of effective public enforcement.