Platform workers in Europe

The employment status of those working in the gig economy remains a significant risk area for platform operators (and users of platform workers). While many individuals enjoy the benefits self-employment can bring, recent years have seen increasing claims for employment status and the legal rights and entitlements that brings. This has attracted significant media attention. And the status of those workers for employment law purposes may have significant employment tax, social security and VAT cost consequences for the platforms via which they find work, so this topic is central to the ability of the platforms to operate competitively.

The Platform Workers Directive (PWD) seeks to provide rights for platform workers across EU members states, including a presumption of employment status in certain circumstances and proposed new rights for platform workers.

The Directive has now been formally adopted by the European Parliament and Council. Member States have two years to implement the Directive into national legislation, (though many will do so more quickly, with some already having laws covering most of what the Directive covers). It will be interesting to see whether non-EU countries such as the UK (perhaps under a new Labour government) adopt similar measures.
 

What does the PWD do?

Definition of platform work

The definition of platform worker in the PWD appears likely to be broad enough to capture any type of worker whose work is assigned to them using any material element of automated decision making. Most staffing companies use, or are heading towards using, automation in that way and so it is not just the famous gig platforms who will be affected.

Presumption of employment status

The PWD 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 when employment status, with the original proposal for a 'if you pass 3 of these 5 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 give rise to the presumption of employment, and each country will be free to decide what classes as 'control' or 'direction' for these purposes.

Automated decisions and data processing

The PWD will also give workers the right to know how decisions about them are made by automated systems and ban 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
 

What will the impact of the PWD be across member states? 

Many countries have already taken steps to protect platform workers with special laws. In addition as a result of the final compromise reached on the PWD, the impact of the PWD in a particular country will largely turn on that country's existing laws relating to the degree of 'control' etc. which will make a relationship as employment relationship.

To understand the impact of the PWD and similar 'platform works' law for businesses, our employment law experts across our EU offices and the UK look at the current employment law position for platform workers in their jurisdictions and any future legislative developments already in the pipeline.

The below is a summary of the employment law implications of the PWD and similar measures – legal advice will need to be taken in each jurisdiction, together with consideration of the specific aspects and other legal rules impacting the position, such as data protection, AI, tax etc. 

Definition of Platform Work

Is platform work already (before local implementation of PWD) defined? What definition currently dictates the rights individuals have when they find work through platforms? 

A "platform worker" for PWD purposes appears likely to be broad enough to capture any type of worker whose work is assigned to them using any material element of automated decision making; most staffing companies use, or are heading towards using, automation in that way.

• Belgium, Italy and Spain have specifically addressed platform work in their legislation for employment rights purposes. In Spain, legislation provides for a presumption of employment for platform workers providing services consisting of the delivery or distribution of any consumer product or merchandise (which can be rebutted). 
• In other jurisdictions (France, Germany, the Netherlands, Poland, Sweden and UK) the applicable legal rights an individual has when finding work through platforms will depend on whether they are determined to be an employee or an independent contractor for the purposes of the laws which apply generally to individuals in that jurisdiction. In the UK, legislation also introduces a concept of "worker" where an individual will benefit from more limited employment laws than an individual with employment status. 
   

Employment Status 

Is there already a presumption of employment status for platform workers and/or other workers?

The PWD includes a presumption of employment status in certain circumstances; where those circumstances apply, it will be for the 'employer' or platform to prove that the individual is not an employee.

• Legislation in Belgium and Spain currently provides specifically for a presumption of employment status for those working through platforms. In both countries the legal presumption can be rebutted.
  • In Belgium, legislation sets out eight criteria applicable to platform workers to create a presumption that an individual providing services through a platform is an employee and a list of four criteria applicable to individuals more generally – to rebut the presumption;
  • In Spain, legislation creates a presumption of employment status for platform workers but which is defined as "those rendering paid services consisting in delivery or distribution of any consumer product or merchandise for employers exercising entrepreneurial powers of organisation, direction and control directly, indirectly or implicitly through algorithmic management of the service or working conditions via a digital platform", which would therefore not be applicable to other platform workers such as those rendering services for transport of persons´ apps.
• As well as legislative provisions providing for a presumption of employment status for platform workers, in Belgium, statutory provisions also provide for a presumption of employment status for other workers. In the Netherlands and Poland a presumption of employment status also exists for workers more generally where certain criteria are satisfied.
• In other jurisdictions (France, Germany, Italy, Sweden and UK) there is generally no statutory presumption of employment status (in France there is a presumption which applies only to very specific jobs). In Italy, while employment legislation specifically addresses platform workers (see question one above), this does not create an automatic legal presumption of employment status. In France, pursuant to French law, any worker registered as an independent contractor is legally presumed not to be in an employment relationship (but this can be rebutted).   
   

Where employment status is already legally presumed/asserted for employment law purposes, where does the burden of proof lie to prove there is no employment status? 

Under the PWD, where the criteria are met for the presumption of employment status to apply, it will be for the "employer" or platform to prove that the individual is not an employee.

• In Belgium and in France, where an individual asserts that they are an employee for employment law purposes under the applicable law, the burden of proof is shared by both parties.
• In other jurisdictions (Germany, Italy, the Netherlands, Poland, Sweden, UK), for these purposes the burden of proving a fact lies with the person who derives legal consequences from that fact; an individual claiming they are an employee for employment law purposes must therefore prove that is so. In Germany, the German authorities do not usually require much criteria to decide that a worker is a dependent employee.
• In the UK there is no presumption of employment status and it is for the individual to prove his/her case (albeit tribunals will often be sympathetic and ignore written contracts), but it is relatively easy and cheap for an individual to assent that status in the Employment Tribunals, and there are now independently funded law firms who will, on a success fee basis, put together 'group actions' for classes of individual who wish to assert employment status.
• Consideration will also need to be given to the individual's status for tax and social security purposes and which may be different. In Belgium, in the transport sector, an irrebuttable presumption of employee status applies with regard to social security. In the UK laws relating to 'arranging' tax avoidance may apply.
• In Spain the presumption of employment status can be rebutted. When an individual is considered a platform worker according to the applicable law (see Current position across jurisdictions), the employer company will have the burden of the proof of the existence of a commercial relationship in case of a judicial claim from the employee or an investigation of the employment or Social Security authorities.
   

Is there already a codified or clearly agreed law test as to whether a platform worker, or where there is no specific provision for platform workers, an individual more generally, is or is not an employee?

While the PWD includes a presumption of employment status in certain circumstances, it does not introduce an EU wide 'test' for determining when employment status, with the original proposal for a 'if you pass 3 of these 5 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 give rise to the presumption of employment, and each country will be free to decide what classes as 'control' or 'direction' for these purposes.

• Only Belgium has a set of criteria for determining employment status that has already been implemented into legislation. In other jurisdictions there is no codified test set out in legislation.
• In France, the Netherlands and the UK case law is generally consistent on assessing whether an individual should be regarded as an employee, based on factors like personal service and control.

• In Germany, Italy, Poland, Spain and Sweden there is no clearly agreed case law test.

  What are the key factors considered by the courts in any case-law based test?

• This is an area which is specific to jurisdictions. Case-law based tests tend to centre around one or more specific concepts such as a requirement for an individual to provide personal service (with no ability to provide a substitute); mutuality of obligation whereby the platform is under an obligation to provide work and the individual to accept it (and which may also restrict the individual in working for other parties); and control – does the individual typically act under the direction of the platform in performing their work, do they comply with specific rules and policies and does the platform set out requirements in relation to their place, days and hours of work.
• As a general rule, the label given by the parties is not determinative and the weight to be given to a contractual clause in determining employment status will depend on the significance of that provision in the execution of the work.

• A flavour of the approach adopted by each country is set out below but this is an area where specific analysis is required:

  France	An employment contact is characterised by a 'subordinate' relationship; the courts consider factors such as the organisation of work, ability to seek other business, tracking performance and imposition of sanctions.
  Germany	An employee is someone who is obliged by an employment contract to perform work under the employer's instructions and is personally dependent as an employer economically. Factors considered include integration into the employer's operation, provision of equipment, requirements regarding place of work, working time and compensation based on time.
  Italy	Determining employment status is complex and self-employment relationships may be reclassified by the courts as employment or as an "organised collaboration". The level of control exercised by the employer over the work performed is a key factor in determining the boundaries of organised collaborations.
  The Netherlands	The courts consider factors such as the nature and duration of work, determination of work and working hours, integration into the organisation, remuneration, commercial risk and whether the person performing the work behaves as an entrepreneur.
  Poland	Factors pointing to an employment relationship include working under the direction of the employer, specific place and time of work, remuneration and limited liability. Factors pointing to self-employment include independence in determining the service location, working hours and full responsibility for work.
  Spain	Factors considered are dependency, which involves the individual working under the direction, control and supervision of an employer, and 'alienity', which refers to the assumption of commercial risk and generation of goodwill, where the employer bears the risk and benefits from the goodwill arising from the employee's work. Other indicators, such as regular periodic compensation, exclusivity and full-time service are also considered but are not as relevant.
  Sweden	There is no legal definition of an employee. Factors considered include a personal obligation to perform work, restrictions on performing similar work for another entity, control or specific directives from another party, variation in tasks, provision of equipment, reimbursement of expenses, compensation based on time and whether the individual is regarded as an employee in social or economic terms.
  UK	There are three categories of status for employment law purposes: employee, worker and self-employed. Factors considered when determining an individual's status include personal service, mutuality of obligation, control, integration in to the workforce and the nature of the relationship.

   

Are there any plans to codify the case law tests or update the codified tests?

• In Belgium, as set out above, a test has already been implemented into legislation. There are no current plans to update it.
• In the Netherlands, the Bill on Clarifying Assessment of Employment Relationships and Legal Presumption) is pending with regard to changing the qualification of the employment agreement and which partially codifies case law.
• In other jurisdictions (France, Germany, Italy, Poland, Sweden and Spain) there are no current plans to introduce any legislation to codify the case law tests for determining employment status. In the UK, the new Labour government has stated that it will publish a consultation on moving towards a single worker status, differentiating between workers (which will include employees) and the genuinely self-employed and ensuring that all workers (which will include employees) know their rights and are protected at work. As part of this consultation, the government will also explore how to implement its manifesto commitments to enhance protections for self-employed workers, including the right to a written contract, extending blacklisting protections and health and safety protections. The German Civil Code covers a few criteria and while a test was introduced over 20 years ago it has since been repealed. 
   

What are the current employment law consequences if a platform worker is not treated as an employee but legally should have been? 

• Where an individual's status has been incorrectly determined this can lead to employment, immigration, tax and social security consequences, as well as wider legal and practical repercussions. In some countries the liabilities for misclassification can be severe, such as in Belgium.
  In summary, general employment law repercussions across jurisdictions include:
  • The contract being redesignated as one of employment. This means that the employee (if they are still employed) benefits from the laws protecting employees in the applicable jurisdiction e.g. legislation and any relevant collective bargaining terms governing working hours, sick pay, paid holiday, minimum salary, family leave rights, termination rights etc.
  • An employee may also be entitled to appoint employee representatives for specific purposes. For example, in Spain, employee representatives would be entitled to receive information about parameters, rules or directions considered by the algorithms or AI systems which could affect decisions impacting employees conditions of employment.
  • Where the contract has already ended, an individual may claim entitlement to arrears of any salary, holiday pay (potentially back to the start of  the engagement), benefits, termination indemnities etc. which they should have received during their period of employment.
• In Italy, the consequences will depend on whether the individual's working performance is reclassified as an "employment" or an "organised collaboration". Where the reclassification is employment, as above, the worker will have access to full protection provided for by the law for employees. Where the reclassification is "organised collaboration" there remains uncertainty as the individual remains a self-employed person but with the benefit of the standard employment protections. The courts however tend to offer full protection to an individual under organised collaboration meaning in practice there is little difference between the entitlements of a worker classified as an employee and an individual classified under this route.
• In the UK, an independent contractor may be determined to be an employee or, more likely, worker rather than an employee and which will mean that they are only entitled to more limited employment rights but which include minimum protections around working hours, pay, pension contributions and holiday.
   

Algorithmic Decision-making

Are there already rules in place providing for transparency relating to algorithmic decision making relating to work? 

The PWD will give workers the right to know how decisions about them are made by automated systems and ban 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.

Artificial Intelligence Act 2024 (AI Act)

On 13 March 2024, the European Parliament adopted the AI Act and which will apply directly to EU member states once fully endorsed. It imposes several transparency obligations for AI systems; systems relating to employment, workers management and access to self-employment are potentially classified as high-risk AI systems and which must therefore meet a higher threshold of transparency obligations, including a requirement for them to be designed and developed in such a way to ensure that their operation is sufficiently transparent to enable users to interpret the system's output and use it appropriately. They must also be accompanied by instructions for use in an appropriate digital format or otherwise that include concise, complete, correct and clear information that is relevant, accessible and understood by users.

The EU AI Act will have direct relevance for EU member states and, while not yet in force, it is advised to implement measures regarding transparency and human oversight before entry into force to ensure immediate compliance with the new rules.

Current position across jurisdictions

• The EU GDPR needs to be considered for those countries which are EU Member States, and in the UK, the Data Protection Act 2018, together with specific guidelines in this area from the applicable local data protection authorities.
• The GDPR applies to the processing of personal data, including the use of algorithms. It gives individuals the right to be informed about the existence of decision-making, including profiling and the logic involved, together with other specific information. Information may also need to be provided as part of a data subject access request.
• Currently the following jurisdictions have also introduced their own specific rules:
  • In Italy, legislation mandates employers to provide information on automated decision making or monitoring systems used in recruitment, management and termination of employment relationships, enhancing transparency in algorithmic decision-making.
  • In Poland, while no specific provisions referring to algorithmic decision-making and its transparency regarding processing of employees' data have been introduced, where automated decision-making may involve activities such as employee monitoring, there are additional obligations to provide information to an employee under Polish labour law.
  • In Spain, legislation provides that the employees´ legal representatives will be entitled to be informed by their employing company of the parameters, rules and instructions on which the algorithms or artificial intelligence systems that affect decision making, which may impact working conditions, access to and maintenance of employment, including profile development are based.

What rules are in place regarding human intervention in algorithmic decision making relating to work?

The PWD guarantees human oversight and evaluation are in automated decisions, including the right to have those decisions explained and reviewed.

Artificial Intelligence Act 2024 (AI Act)

Human intervention or human oversight is also an important principle in the AI Act and high-risk systems (which many systems relating to work will be considered as) must be designed and developed in such a way, including with appropriate human-machine interface tools, that they can be effectively overseen by natural persons during the period in which the AI system is in use. Human oversight should be ensured through either one or all of the following measures:

• Identified and built, when technically feasible, into the high-risk AI system by the provider before it is placed on the market or put into service;
• Identified by the provider before placing the high-risk AI system on the market or putting it into service and that are appropriate to be implemented by the user.

Current position across jurisdictions 

• The EU GDPR needs to be considered for those countries which are EU Member States, and in the UK, Data Protection Act 2018, together with specific guidelines in this area from the local data protection authority.
• As a general rule, under Article 22(1) GDPR, any decision based solely on automated processing is unlawful if it produces "legal effects concerning" the data subject "or similarly significantly affects" the data subject.

There are exceptions to the general rule if a decision:

"(a) is necessary for entering into, or performance of, a contract between the data subject and a data controller"; or

"(b) is authorised by Union or Member State law to which the controller is subject and which also lays down suitable measures to safeguard the data subject's rights and freedoms and legitimate interests"; or

"(c) is based on the data subject's explicit consent"

(Article 22(2) GDPR)

Recital 71 affirms that "in any case, such processing should be subject to suitable safeguards, which should include specific information to the data subject and the right to obtain human intervention, to express his or her point of view, to obtain an explanation of the decision reached after such assessment and to challenge the decision. Such measure should not concern a child".

Article 22(3) GDPR provides that "in the cases referred to in points (a) and (c) of paragraph 2, the data controller shall implement suitable measures to safeguard the data subject's rights and freedoms and legitimate interests, at least the right to obtain human intervention on the part of the controller, to express his or her point of view and to contest the decision".

Local employment laws should also be considered. For example, in France, whether or not the decision is "fully automated" (within the meaning of the RGPD), the French Labour Code remains applicable when dealing with employment contracts. In particular, the methods used must be relevant to the open position, with this obligation applying in particular to the choice of software and the decision-support tools. Where these tools are based on "learning" algorithms, the recruiting entity is responsible for ensuing that these tools (including their learning mechanism) are relevant.
 

Other employment laws specifically addressing platform workers

Are there any other existing employment laws in your jurisdiction providing for specific entitlements relating to an individual's role as a platform worker or plans to introduce new employment laws (aside from local implementation of the PWD?

• In France, as well as the ability to file a claim to get the employment relationship reconsidered where by default the platform worker is regarded as an independent worker, platform workers (even if they are considered as independent contractors) can be eligible where they meet certain criteria, to social protection in case of work-related accidents. Specific rules also apply to platforms that offer driving or delivery services to strengthen the rights of these individuals.
• In the Netherlands, the Bill on Clarifying Assessment of Employment Relationships and Legal Presumption is currently progressing the aim for it to be implemented into law in July 2025. The Bill consists of two main measures:
  • A clarification of the concept of performing labour under the authority of  the employer; and
  • The introduction of a rebuttable presumption of an employment agreement based on an hourly rate.
• There are no other current plans progressing in any other jurisdictions (other than which may arise as a result of the PWD). It should be noted though that in the UK a new government came into power in July and we now await further detail on any legislative developments which may impact gig workers.  
• It should also be noted the EU AI Act will have direct relevance for EU member states and, while not yet in force, it is advised to implement measures regarding transparency and human oversight before entry into force to ensure immediate compliance with the new rules.