On November 11, 2024, Directive (EU) 2024/2831 of the European Parliament and of the Council of 23 October 2024 on improving working conditions in platform work was published in the Official Journal of the European Union (OJEU). Its transposition by the Member States (which deadline is December 2, 2026) will bring with it new and important obligations for digital platforms.
Four years have passed since the publication of Royal Decree-Law 9/2021, of May 11, to guarantee the employment rights of persons engaged in delivery services through digital platforms (known as the ‘Riders’ Law’). This regulation added to the Workers’ Statute (i) the twenty-third additional provision, which introduced a presumption (which admits proof to the contrary) in favor of the employment status of relationships with digital platforms for the delivery or distribution of any consumer product or merchandise; and (ii) a paragraph d) to its article 64.4, which included the right of the legal representation of employees to be informed by the company of the parameters, rules and instructions of the algorithms or artificial intelligence systems that may affect working conditions, access and maintenance of employment.
In this context, on November 11, 2024, Directive 2024/2831 on the improving working conditions in platform work, irrespective of their industry and place of establishment, when the work is performed in the European Union, was published in the OJEU. Member States will have to transpose this directive before December 2, 2026.
The most relevant novelties that its transposition into Spanish law may bring are as follows:
- Joint and several liability regime
The Directive requires Member States to adopt measures to ensure that persons performing platform work through intermediaries enjoy the same level of protection as those who have a direct contractual relationship with the platform. Such measures include the possibility of establishing joint and several liability systems for all participants in the contracting chain.
- Presumption of employment in the provision of services through digital platforms, unless there is evidence to the contrary
Following the same technique as the ‘Rider Law’, the directive establishes a presumption that the contractual relationship between a digital labor platform and a person who performs work through the platform is an employment relationship “where facts indicating direction and control, in accordance with national law, collective agreements or practice in force in the Member States and with consideration to the case-law of the Court of Justice, are found”. This is, once again, a rebuttable presumption, recognizing that the digital platform may prove that the nature of the relationship is not an employment one. Specifically, the directive in this regard states: “Where the digital labor platform seeks to rebut the legal presumption, it shall be for the digital labor platform to prove that the contractual relationship in question is not an employment relationship as defined by the law, collective agreements or practice in force in the Member States, with consideration to the case-law of the Court of Justice”.
It remains to be seen whether and how this presumption affects the above-mentioned provision of the Workers’ Statute, as the directive also states that “Member States shall establish an effective rebuttable legal presumption of an employment relationship that constitutes a procedural facilitation for the benefit of persons performing platform work. Moreover, Member States shall ensure that the legal presumption does not have the effect of increasing the burden of requirements on persons performing platform work or their representatives in proceedings to determine their correct employment status”.
In addition, the directive provides for the need for Member States to put in place several supporting measures to ensure the effective application of the legal presumption, such as (i) appropriate guidance for platforms, platform service providers and social partners to understand and apply the legal presumption; and (ii) appropriate guidance and procedures for competent national authorities to proactively target non-compliant digital platforms.
- Algorithmic management
The directive prohibits the processing of certain personal data of persons performing platform work, such as those related to emotional or psychological state, private conversations, exchanges with other persons performing platform work, or those from which it can be inferred, among other matters, racial or ethnic origin, migratory status, or health status.
In addition, the directive provides that digital platforms must (i) inform the persons performing platform work (as well as the workers’ representatives and, upon request, the competent authorities) about the use of automated monitoring or decision-making systems; and (ii) carry out audits (with the participation of workers’ representatives) on the impact of such systems on the persons performing platform work.
Furthermore, persons performing platform work will be entitled to receive a written statement of the reasons for any decision supported or taken by an automated decision-making system to restrict, suspend or terminate their account (although the directive clarifies that its rules do not affect applicable disciplinary and dismissal procedures).
- Transparency in relation to work on platforms
Member States shall ensure that digital platforms make available to the competent authorities information concerning (i) the number of persons performing platform work on a regular basis and their contractual or employment status; (ii) the general terms and conditions determined by the digital labor platform and applicable to those contractual relationships; (iii) the average duration of activity, the average number of hours worked per week per person and the average income derived from the activity of the persons performing platform work on a regular basis through the digital labor platform concerned; and (iv) the intermediaries with which the digital labor platform has a contractual relationship.
In short, the transposition of the directive will lead to a significant increase in the obligations of digital platforms, aimed at improving the protection of the conditions of those who provide their services through them.
