Privacy International writes to Council of European Union members on the new Platform Workers Directive

The European Commission proposed the PWD in December 2021 with the objective to improve the working conditions in platform work. In February 2023 and June 2023 respectively, the European Parliament and the Council reached their respective positions, with trilogue negotiations beginning in July 2023.

PI welcomes the PWD as a mechanism to protect workers’ rights in response to transformations in the workplace, specifically with regard to the growing adoption of algorithmic management systems and the risks that accompany it. We welcome in particular the efforts to improve the protection of personal data and increased transparency, fairness and accountability in algorithmic management to ensure workers are not unfairly affected by automatic decision making (ADM) systems.

However, as we noted in our initial recommendations on the Commission’s proposal published last year, we believe the protections around algorithmic management and ADM should apply as widely as possible given the stated purpose of the PWD and the rapidly changing nature of work.

We and others have reported how harmful ADM can be to workers through arbitrary algorithmic decision, dynamic pricing or Facial Recognition technologies, all impacting workers who are given little means challenge these practices.

In that regard, we are concerned about the approach that the Council has taken towards the presumption of employment (Article 4(1)) in its June 2023 proposal. The current framing of the presumption risks undermining a premise that underpins the PWD - namely that protections against potential harms resulting from algorithmic management should apply to all platform workers.

We fear that the way the presumption is framed increases the risk that many platform workers will be misclassified as freelances. PI believes that this risk will result in large numbers of platform workers in practice excluded from the new algorithmic management safeguards for three reasons:

1. Freelance platform workers are less likely than employees to have the resources and bargaining power to invoke some of the protections against harmful deployments of ADM enshrined in the PWD.
2. The Council's proposal allows Member States to provide that where platform workers have shown that the presumption of employment applies, their classification as employees can be suspended pending the outcome of litigation brought by the platform to rebut the presumption. This is an unnecessary loophole that may in practice deny critical protections to platform workers during the course of potentially lengthy litigation.
3. The requirement for workers to meet a substantial number of onerous criteria to satisfy the presumption of employment might incentivise behaviours by platforms that are directly contrary to the aims and purpose of the PWD, for example, using dynamic pay and pricing models to prevent workers from demonstrating that there is an upper limit on their rate of remuneration (Article 4(1)(a)) of the PWD).

In view of these concerns, we ask the Council members to re-visit their position on the presumption of employment to ensure that the criteria are less onerous than the current framing. You can find the letter we send to members of the Council attached at the bottom of this page