Over recent years there have been notable developments in how employment safeguards apply to gig economy workers. The pace of change slowed in 2023.
Legislation or case law in most countries lays down factors for courts and tribunals to apply to decide if someone is an independent contractor, an employee, or in some cases has an intermediate “worker” status. For example, in May 2023 the Labour Tribunal in Hong Kong ruled that gig economy workers in one case were employees. The tribunal considered factors such as control over how the job was performed, who provided equipment, financial risk, the opportunity to profit from sound management and integration into the business.
The Dutch Supreme Court endorsed similar factors when deciding if a group of platform workers were employees under the Dutch civil code. The Court emphasised integration into the business as a factor. A legislative proposal may formalise the case law requirements by clarifying what’s meant by working under someone else’s authority. This is a crucial part of showing employee status under the civil code.
In a more radical attempt to protect vulnerable workers, the previous Dutch government said it would ban zero-hours contracts. It would also require employers to give on-call workers contracts for the minimum hours they’re normally scheduled to work. Employers would be able to demand that employees be available for another 30 percent of their time. We’re waiting for a decision on whether the new government will pursue either proposal.
A similar ban on zero-hours contracts is likely in the United Kingdom if the Labour party forms a government after the general election widely expected in 2024.
The Hungarian Curia (or Supreme Court) recently ruled that platform workers of a food delivery service were independent contractors, not employees. They weren’t integrated into the organisation of the business. There was no hierarchical relationship between the business and the workers. There were no detailed instructions about how to perform work, no fixed working time or salary, and the workers used their own equipment.
In other developments, Spain has introduced a criminal offence of imposing “illegal terms and conditions on … workers by hiring them under mechanisms other than an employment contract”. This offence aims to stop employers from using disguised employment structures and to ensure they treat workers as employees. The Spanish Labour Inspectorate carries out labour inspections to deter employers from using these hiring methods.
Meanwhile in Italy, courts reclassified platform workers as organised collaborators (autonomous workers who benefit under Italian law from protections set out for employees) or as subordinated employees. Subordinated employees have a right to some safeguards available to standard employees, including certain dismissal rights.
In Vietnam, an expanded Labor Code in 2021 covered people without a labour contract if the characteristics of their relationship with a work provider were similar to those of a labour contract. To date there are no publicly available court decisions considering the new rules; this may be an area where you see developments this year.
Last year the United Kingdom Supreme Court considered union recognition for gig economy workers. The Court confirmed that because riders had a genuine right to provide a substitute, they didn’t have an employment relationship and so weren’t entitled to trade union recognition. The union’s attempt to rely on the European Convention on Human Rights to support an argument that all workers were entitled to recognition failed. By contrast, in Japan, the Tokyo Labour Relations Commission agreed that a labour union representing delivery workers was entitled to enter into collective bargaining arrangements.
There will be more developments in this area in the next couple of years, at least in the EU. In late December 2023 the EU Council and Parliament reached a provisional agreement on the Platform Work Directive, paving the way for its adoption. Once the directive is implemented, platform workers will be presumed to be employees if two out of five indicative factors apply. Examples include controls on the amount they earn, how tasks are allocated to them and their working conditions and hours. Workers will have more rights to information about how employers make automated decisions about them and there’ll be guaranteed human involvement in significant decisions, such as suspending a worker’s account.
Long awaited Deliveroo ruling from the Dutch Supreme Court delivered