One of the most relevant innovations that the digital transformation of companies brought with it was the possibility of offering and brokering work via online platforms. According to the European Commission, these systems allow companies to effectively match labor supply with demand and enable workers who face barriers to access the labor market, such as young people, people with disabilities, migrants or members of minority groups can make a living or earn additional income.
According to the European Commission, more than 28 million people in the bloc currently offer their services through one of the 500 digital platforms operating there, and this number is expected to rise to 43 million by 2025. As for the national level In the absence of official statistics, Spain is the country with the highest percentage of the population over 16 years of age working, according to the European Commission’s COLLaborative Economy and EMployment (COLLEEM) survey. Mainly or occasionally, via platforms, with 12.2% in 2017 and 18.5% in 2018.
Data justified by the importance of the services sector in the Spanish economy, but which raises relevant legal questions. To counteract them, the so-called rider law passed in September 2021 adopted the criteria set by the Social Chamber of the Supreme Court in its ruling of September 25, 2020. The Reitergesetz regulated the employment relationship. in the field of digital delivery platforms and recognized the right to information about the representation of workers providing their services on these platforms.
Subsequently, in December of the same year, the Commission presented a proposal for a directive to improve working conditions on digital platforms. A regulation that appears to be in the final stages of adoption and whose content must be implemented by the Member States no later than two years after it comes into force. The big question is whether the employees of these platforms are employed or, on the contrary, self-employed. As Román Gil, partner at Sagardoy, explains, this directive has three objectives. Firstly, contribute to providing greater legal certainty to the concept of a worker providing services via a digital platform. Second, demand that platform workers be informed about the algorithms that impact the management of their employment. Finally, human oversight of certain employment-related decisions must be ensured.
In this sense, Adrián Todolí, Professor of Labor Law at the University of Valencia, adds: “The main innovation that this directive provides is the introduction of a list of signs of employment that the courts must evaluate in order to determine whether a platform worker is employed is or not.” independently. Specifically, says Jorge Sanz, senior associate at Bird & Bird, the directive introduces the presumption of employment for workers on all types of digital platforms, not just for workers in product delivery or distribution services, as the law requires. Spanish.
Uncovered flanks
However, experts do not agree on whether this rule is sufficient to clarify whether a platform worker’s employment relationship is an employment relationship or not. On the one hand, Gil and Sanz believe that the Directive will help identify bogus self-employed people by introducing very specific employment criteria (determining remuneration, setting standards of appearance or behavior, or requiring exclusivity in services, etc.). However, in Todolí’s opinion, this list of indications is incomplete because important indications are missing, such as that the employee works under a brand that is not his own or for end customers that are not his. Information that our courts recognize as crucial to solving the problem and which the new regulations do not take into account.
The experts interviewed agree on the importance of this standard when it comes to informing workers about the algorithms that regulate or control their activities. Àlex Santacana, partner in the work area of Ceca Magán Abogados, explains that workers’ right to information and transparency regarding the use of algorithms by digital platforms is guaranteed in great detail. In this sense, he adds, companies must report on the automated monitoring systems used to track, monitor or evaluate, by electronic means, the execution of the work carried out, or on the automated decision-making systems used to make or support decisions , which significantly affect the working conditions of these workers.
According to Todolí, this is a first approach of the regulation to these issues and can therefore hardly be considered complete. All in all, Jorge Sanz understands that the directive represents, in this respect, a significant improvement on the Spanish regulation, which only provided for the right of the works council to be informed about the parameters on which the decision-making algorithms in the workplace are based. Román Gil particularly positively assesses the need to assess and incorporate preventive and protective measures in relation to safety and health at work when applying algorithmic management, as well as the obligation to inform and consult employee representatives. with procedural, evidentiary, reparation and sanction options.
Information and transparency
The future directive defines concrete indicators for classifying an employment relationship, such as the determination of remuneration or the restriction of the employee’s temporal freedom through the platform.
It also introduces obligations to ensure transparency and human oversight in algorithmic labor management. Therefore, companies must inform their workers about the automated decision-making systems used to manage employment, assigned tasks, their income, working hours, promotion and contract status, including restriction, suspension or deletion. your account.
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