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The Classification of Platform Workers in Case Law: A Cross-European Comparative Analysis

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Christina Hießl
Researcher, Institute of Labour Law and Civil Law, Goethe University Frankfurt

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3 Minutes

In recent years, judicial and administrative authorities around the world, including in a number of European countries, gradually became confronted with questions on the classification of platform workers. Brought before the (labour, civil, business and social security) courts and taken up by labour inspectorates, tax and social security institutions, competition authorities and prosecutors, these questions have been answered in a variety of ways. Repeatedly, they have prompted courts to re-evaluate the criteria traditionally used to distinguish between employees and self-employed.

In a paper available via SSRN I provide an analysis of this case law as of September 2021. It is based on 173 judgments and administrative decisions in the fourteen European countries where platforms have so far been subject to such decisions: Austria, Belgium, Denmark, Finland, France, Germany, Ireland, Italy, the Netherlands, Norway, Spain, Sweden, Switzerland, and the UK. Upon request, I am happy to provide a detailed overview of all the cases considered (including case numbers, dates, deciding bodies, links, outcomes and the relevant legal reasoning).

Overall conclusions on dominant patterns in national case law are difficult to draw—notably with a view to the heterogeneity of platforms and regular reforms of their inner working, the scarcity of case law on some platform types, and the inconsistency of the judicial assessment in many countries.

Some issues appear rather country-specific. For instance, the UK is the only one among eight countries with existing case law on food delivery riders where the courts have (so far) seen a substitution clause as an insurmountable barrier for their classification as employees. In Spain, the key to a (now remarkably stable) recognition of platform workers’ employment status was the re-evaluation of ideas about what constitutes the most relevant means of production for an economic activity. Last December’s Supreme Court judgment turned German case law from an example of a strict approach toward criteria such as the obligation to work into one which overcame this hurdle by a particularly intriguing approach focusing on the situation of the principal. Sweden and Norway currently stand out as the only countries where courts and higher-instance bodies are preventing labour inspections from reclassifying platforms as employers. At the same time, all these cases were expressly restricted to questions of health and safety and do not prejudice the assessment of platforms’ possible employer status in respect of other areas of law. A recent Dutch judgment is so far the only one to use a broad interpretation of the concept of temporary agency work to ascribe employer status to the platform even where the contents of work and pay are effectively determined by the customer.

For several countries, the future-proofness of the jurisprudential tendencies described in the paper might have to be considered with caution, as case law is erratic and/or still very scarce. Among the patterns and developments which seem of consistent relevance for all countries, one might point out

  • the decreasing importance attached to contractual designations as ‘self-employed’;
  • less insistence on exclusively personal work performance, and notably its basis in a contractual obligation;
  • a more liberal approach to the question of an obligation to work (either by effectively accepting incentives or expectations instead of strict obligations, or by a purposive interpretation which reassesses the role of this criterion as an indicator of entrepreneurial independence);
  • a better understanding of the way in which platforms issue instructions, exercise control and impose sanctions, or find functional equivalents resulting in an equal degree of domination; and
  • a shift of focus towards criteria of organisational integration (irreconcilable with genuine independence/entrepreneurship), and a more in-depth assessment of the factors that determine such integration.

By contrast, only very scattered evidence points to an embracement of economic dependence as a significant criterion, or to a consideration of indicators of the principal’s employer status.

With a view to the rapid evolution of the way in which platforms are working, it seems significant to note that some aspects of the reasoning that courts have relied on to reclassify platform workers as employees might be at risk of losing their relevance over time. For instance, the overall picture suggests that the more workers are active on a certain platform, the more the platform can ‘afford’ to forego elements of instructions, sanctions, or even special incentive systems—as the competition between riders or drivers ensures that there will always be one to accept even less attractive routes or fill in for a colleague who cancels a prior commitment. This makes the position of workers both more precarious and less likely to be characterised as employment using traditional criteria.

Accordingly, first, the global shift of focus towards criteria of organisational integration, which is evident in the evolving jurisprudence of most of the countries I surveyed, might need to be developed further if the reclassification of platform workers whose work and pay is actually determined unilaterally by the platform is to be upheld. For types of platforms which do not dominate work performance in this way, reclassification as employers might require an even more substantial deviation from the traditional focal points of national tests of employee status. The example of decisions on cleaners and handymen/errand-runners illustrates that groups of low-skilled, vulnerable workers may be difficult to capture by criteria of organisational integration and dependence.

Given all this, I conclude that courts across countries are currently facing a substantial challenge when aiming to ensure that labour and social protections apply to those workers most in need of them.

Christina Hiessl is a Researcher at the Institute of Labour Law and Civil Law, Goethe University Frankfurt.

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