EU agrees watered-down Platform Workers Directive – what will platforms and staffing companies need to prepare for?

EU ministers have finally agreed, on 11 March, a provisional deal for the Platform Workers Directive (PWD). Importantly, it includes a presumption of employment status in certain circumstances, such that where those circumstances apply, it will be for the "employer" or platform to prove that the worker is not an employee. 

But it does not introduce an EU-wide "test" for determining the circumstances when employment status will apply, with the original proposal for an "if you pass three of these five tests you are an employee" mechanism having been dropped as a result of opposition from a blocking minority of four EU countries. In other words, it will be down to each country to decide what control features will constitute the circumstances which give rise to the presumption of employment, and each country will be free to decide what classes as "control" or "direction" for these purposes. 

What will the impact be?

Sceptics may feel that the PWD therefore does not really change much. However, it does require all countries to have as a starting point a presumption of employment, and so many gig workers whose circumstances seem vaguely in the arena of "being controlled" may feel more confident they have the green light to bring a claim. The hard work will then fall on the employer/intermediary/platform to prove that there is no relevant control or direction under local country law. 

The PWD will also give workers the right to know how decisions about them are made by automated systems. It will ban the use of the processing of certain types of personal data of persons performing platform work, such as biometric data or their emotional or psychological state. Human oversight and evaluation are also guaranteed in automated decisions, including the right to have those decisions explained and reviewed. 

And the impact of the directive will be felt well-beyond the classic world of taxi and delivery apps: the definition of platform worker appears broad enough to capture many types of worker whose work is assigned to them or performance assessed using any material element of automated decision-making. Most staffing companies use, or are heading towards using, automation in that way. 

What to expect next 

The next stage is for the draft directive to be translated into multiple languages, the text of each translation to be agreed and for it then to be adopted. Member States will then have two years to implement it into national legislation (though many will do so more quickly, with some already having laws covering most of what the directive covers).

It remains to be seen if any new government in the UK will adopt similar measures, including the presumption of employment status and reversal of the burden of proof so that it is against the "employer". This may form part of the shadow deputy prime minister, Angela Rayner's, drive against "bogus" employment contracts and "exploitative" zero hours arrangements in the first 100 days of a new Labour government (if the Labour Party were to win the election).