Platform work: Employment status, employment rights and social protection

06 Σεπτέμβριος 2018

Platform work is a form of employment that uses an online platform to enable organisations or individuals to access other organisations or individuals to solve problems or to provide services in exchange for payment. Still small in scale, this form of employment has developed rapidly in 10 years. This presents economic opportunities as well as challenges to existing regulatory and institutional frameworks.

The relevance of the employment status for workers’ rights

One such challenge includes the employment status of platform workers. Employment status refers to the legal status of economically active citizens, which includes the category of employee, self-employed or another legally defined category. Labour law was constituted to redress the unequal power relationship between the employer and the subordinate employee. For that reason, it applies more sparsely to the self-employed. Employees and self-employed are granted different levels of access to certain rights, such as for example protection from discrimination and unfair dismissal, working time regulation or access to benefits such as parental leave or sick pay. Additionally, the employment status of a worker has consequences for workers’ social protection, such as their building of pension rights.

The unclear employment status of platform workers

For the time being, none of the EU Member States has clear regulations specifying the employment status of platform workers. As a result, workers fall back on the existing regulatory framework and adopt one of the employment statuses it recognises. Typically, a distinction is made between employees and self-employed workers.

In some countries, one or more additional categories or subcategories of these two statuses exist, such as the ‘auto-entrepreneur’ status in France, the ‘employee-like’ status in Austria, ‘quasi-subordinate worker’ in Italy, ‘student work’ in Belgium or Slovenia and ‘contract for services’ in Croatia. In other countries, there is an ongoing debate on introducing such a third status for platform workers.

In the absence of clear regulations, in practice, the terms and conditions of the platform determine the employment status, and in most cases, this means that platform workers are considered self-employed. Nevertheless, there are a few examples of platforms offering workers an employment contract. However, even if a platform offers employment contracts, this is not necessarily done for all affiliated workers.

The ambiguity of the employment status of platform workers has been the subject of court cases in several countries. Courts have been asked to clarify the status of platform workers when there is an alleged misclassification. Rulings are made on a case-by-case basis, with the courts considering the specific circumstances. This suggests that the courts could arrive at different conclusions for workers active on the same platform and in the same sector or country.

In the UK, for example, the Employment Appeal Tribunal (EAT) held that Uber drivers are ‘workers’ for the purpose of statutory employment rights. An appeal in the Court of Appeals was not successful and the court upheld the prior ruling. Uber has however announced to call the Supreme Court on the matter.

In Italy, the Labour Tribunal of Turin in April 2018 rejected the claim by six Foodora couriers that they should be reclassified as employees with the argument that the workers are free to decide when to work and to disregard previously agreed shifts.

In contrast to that, in Spain, the labour inspectorate of the autonomous community of Valencia concluded in December 2017 that Deliveroo riders are employees and not self-employed as the platform claims. As a result, the platform was obliged to pay around €161,000 in unpaid social security contributions. As of spring 2018, this ruling was not final because the platform may still appeal the decision in court.

Employment rights and social protection of platform workers

The clarification of the employment status of platform workers is relevant as it influences the workers’ employment rights, including social protection.

As platform workers are generally considered self-employed, they are often covered by the social insurance systems of self-employed workers, which tend to be less favourable as regards coverage of different risks. Furthermore, while contributions for social protection of employees are shared between the employee and the employer, self-employed are responsible for the full contributions. Some national regimes set minimum eligibility thresholds that might be difficult to reach for platform workers who work on a part-time or occasional basis.

As a result, a large share of platform workers is not covered by unemployment insurance as this social protection strand is often not accessible to self-employed, and also other strands of social protection might not be secured on the basis of their platform work. For example, social protection under the French ‘auto-entrepreneur’ scheme – a sub-category of self-employment that is often applied in platform work - means that healthcare cash benefits and retirement pensions are much less favourable than in the general scheme applicable to employees, and workers are not insured for accidents at work or occupational diseases. However, a 2016 regulation stipulates that platform workers can join a social insurance scheme for accidents at work and occupational diseases funded by the platforms. With a similar intention, in some countries trade unions facilitate social insurance coverage of platform workers (either specifically, or more generally for self-employed).

Similarly, the consideration of platform workers as self-employed results in a situation in which employment and labour protection regulations may not apply. An example is working time regulation, with the potential consequence of unpredictable working time schedules, long and unsocial working hours or the absence of breaks.

Other issues regarding platform workers’ employment rights, like occupational health and safety, have not gained much attention in public and policy debate. Accordingly, no specific provisions for platform workers are in place across Europe. Also, health and safety provisions are normally tied to employment status, and often apply only to employees. This refers to the provision of insurance, but also employees’ rights to receive, and employers’ obligation to provide, relevant information and preventive measures.

Some platforms have started to offer this insurance to workers, but these platforms are an exception to the norm.

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