There is a crack, a crack in everything … How European courts counter bogus self-employment in the platform economy

Abstract

14 | International Union Rights | 28/1 REPORT | PLATFORM WORK IN EUROPE There is a crack, a crack in everything … How European courts counter bogus self-employment in the platform economy The opportunities that come with platform work are great – but so are the potential downsides of low pay, long hours, and precarious conditions. And at the basis of this was and still is issue of the legal status of those working in the platform economy: Are they self-employed as most of the platforms claim or are they actually employees and therefore misclassified? As lawmakers in Europe have mostly taken a laissezfaire approach it is on the courts to deal with this question. In the last years more and more cases have been brought before them and very recently the supreme courts have decided in a number of countries. And it looks that the once solid narrative promoted by the platforms that they are only helping small entrepreneurs to link up with their customers is showing more and more cracks. And as Leonard Cohen sang, ‘that’s how the light gets in’ for those working in the platform economy. In the absence of specific legislation, platform work in Europe is legally assessed using the existing general legal framework and its concept of employee defining the personal scope of labour and employment law. The burden is thus on the courts to adapt the received concept by way of interpretation to the changed working environment in times of digitalisation. There are now numerous decisions, some of which, however, have not yet been decided in the last instance. Two central areas of platform work are particularly affected by legal disputes: passenger transport services and food delivery. Issues connected with other forms of platform work have seldom been raised in the courts. The brief comparison of the rulings below reveals clear differences, but one trend can be detected – platform workers are increasingly re-classified employees although the arguments for this are often different. France The French Cour de Cassation in 2018 ruled that bicycle couriers using the Take Eat Easy platform for food delivery are considered to be employees1. The combination of real-time geo-tracking applications and disciplinary sanctions amounted to a degree of direction and control that warranted the establishment of employment status. The same court also handed down the first national supreme court decision in Europe on the employee status of Uber drivers in 2020. It ruled that in the case at hand there was subordination and that accordingly, the platform employees were not to be qualified as selfemployed but as employees2. The court reasoned that it is not the theoretical possibility to freely choose working time and place of work that excludes a relationship of subordination. Rather, what is decisive is whether the platform worker has economic and financial room to manoeuvre. The United Kingdom In the United Kingdom, the Employment Tribunal qualified Uber drivers as ‘workers’ (in the sense of the British legal understanding) and not as self-employed3. The findings were upheld in the Employment Appeal Tribunal and by a majority in the Court of Appeal4. Uber’s final appeal to the Supreme Court was unanimously dismissed on 21 February 20215. The final judgment emphasises five aspects which justified its conclusion that the claimants were considered workers working for Uber. First, Uber that sets the fare and drivers are not permitted to charge more Second, the contract terms on which drivers perform their services are imposed by Uber and drivers have no say in them. Third, once a driver has logged onto the Uber app, the driver’s choice about whether to accept requests for rides is constrained by Uber. Fourth, Uber also exercises significant control over the way in which drivers deliver their services especially by the rating system and the sanctions resulting from low ratings. And a fifth significant factor is that Uber restricts communications between passenger and driver. Taking these factors together, drivers are in a position of subordination and dependency in relation to Uber and were therefore found to be ‘workers’. Thus they are entitled to a small number of core rights attaching to worker status, including, importantly, those guaranteed by the National Minimum...