Europe’s biggest platform companies will fail the majority of the five tests laid down by the EU to determine whether their staff are genuinely self-employed, an analysis by the ETUC has found.
The platform work directive published by the European Commission in December includes a list of criteria which will be used to determine if an employment relationship exists between workers and a company. If a company meets at least two of the five criteria, they will be considered an employer.
These burdensome criteria could defeat the point of a ‘presumption’ of employment status promised by the Commission as well as opening new loopholes which platform companies could use to continue escaping their obligations.
But that doesn’t mean platforms can expect a free ride. Our analysis has found Uber and Deliveroo are among well-known companies which meet more than two of the tests and would therefore be classed as employers.
ETUC Confederal Secretary Ludovic Voet said:
“Platform companies will be working hard and spending big to try to cheat the tests set for them by the EU and maintain their business model based on exploitation.But if it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck. The same goes for employers.
"It couldn’t be clearer that Europe’s biggest platform companies should be considered employers. If the proposed Directive does not ultimately apply to large platforms which clearly act as employers, what would be the purpose of this directive?
"The reaction of the platforms, confident that the Directive will confirm that they can operate with self-employed without changing any part of how they currently operate, should alert MEPs and ministers of the need to strengthen the proposed Directive so that no platform falls through the cracks.
“MEPs and ministers should close the loopholes in the draft legislation to ensure platforms can’t continue cheating workers and businesses that play by the rules. The best thing platforms could do is finally get round the table with trade unions and negotiate decent pay and conditions for their workers.”
Full analysis
Amazon Mechanical Turk
Criteria 1:
Workers have no voice in the setting upper limits of remuneration for their jobs. Whereas this is in principle determined by the client, in practice the amounts do not vary within the different categories of work performed. More importantly, Amazon Mechanical Turk takes the right to disable, supplement, or modify the remuneration options at any time.
It should also be considered that the payment of work performed can be rejected if it is grounded by either the customer or the digital labour platform in a “good cause”. Amazon Mechanical Turk may even terminate the contract and the future access to the platform for the worker without notice for any reason.
Criteria 2:
Amazon Mechanical Turk request its workers to behave towards clients “in a professional and courteous manner, and provide reasonably requested information in connection with your performance of Tasks”. Furthermore, other demands workers should perform their tasks “in a competent and workmanlike manner” and are prevented from using any automated method to support their job. The platform can request workers to complete a qualification test upon request of the customers.
Criteria 3:
The platform may implement mechanisms to track the tasks performed by workers and the performance of these jobs, which is also subject to rating. It also collects those ratings and post them for public notice on the site. Clients are granted the power of rejecting completed jobs before having to pay for them.
Criteria 4:
Does not apply
Criteria 5:
Workers of Amazon Mechanical Turk are not allowed to perform jobs through means others than the platform, which virtually prevents workers from building any client base or reaching out to customers by any other means.
Uber
Criteria 1:
Uber sets the level of remuneration of its workers. The passenger pays the fare to Uber, and it pays the workers on a weekly or daily basis the total amount earned from the rides undertaken. An amount of 25% in service costs is deducted from the fare. Although the customer and the workers can mutually agree to take a route other than the one proposed by the app and this may have an impact on the fare, there is no question of free negotiation between passenger and workers.
Uber decides unilaterally about a possible solution in the event of customer complaints, including adjustment of the agreed fare. The worker can object to this, but the final decision rests with Uber.
Criteria 2:
Workers have to agree to the conditions set by Uber to be admitted to its platform. The conditions under which they can start using the Uber app are non-negotiable: They must first fully accept all conditions in order to be able to provide taxi rides by way of the app.
Uber unilaterally determines the terms under which the drivers work, which Uber can also unilaterally change, and workers cannot reject these changes if they are to continue driving through the Uber app.
Criteria 3:
Workers are given a rating via the app and are therefore assessed, which may affect access to the Uber platform and the rides offered. A low average rating can result in removal from the platform, while a high average rating is an important criterion to qualify for higher status with the apps which yields financial benefits for the driver.
Criteria 4:
Uber explicitly verifies, by means of a selfie to be taken by the workers, whether the work is performed in person.
The algorithm of the Uber app determines how the rides are allocated and prioritised, on the basis of a system set by the company. When a ride is offered, Uber provides a limited amount of data, so that the driver cannot accept only those rides most advantageous for him.
The algorithm of Uber acts as a financial incentive and has a disciplining and instructing effect, irrespectively of the fact workers have some freedom – to a certain extent – to refuse a ride, determine their own hours, and use different apps or other booking systems at the same time. Once they use the Uber app and are logged in for this purpose, they are subject to the operation of its algorithm.
The frequent cancellation of rides by workers leads to exclusion from the use of the Uber app. Rejecting an offered ride three times also means that the driver is logged out of the system and therefore no longer offered rides until he is logged in again.
Criteria 5:
Does not apply
Glovo
Criteria 1:
To try to avoid the application of the law known in Spain as the "Rider Law", Glovo changed the way in which remuneration is determined from a fixed system managed exclusively by the company to a remuneration auction system in which the workers offering the lowest prices tend to get the jobs. This model does not justify exempting the company from price control, considering that the auction is controlled by the company and in reality, it does not offer any possibility for workers to obtain higher remunerations.
Criteria 2:
Glovo specifies how the work should be performed and the service provided. The company controls compliance with the instructions through the application. It is established that the delivery person had to perform the service within the agreed maximum working time; it is also specified how workers should address to the end user; workers are forbidden to use corporate badges such as T-shirts, caps, etc.
Criteria 3:
The company has established a scoring system that, among other factors, is based on the final customer's evaluation. The establishment of production activity control systems based on customer ratings should be understood as a favourable indication of the existence of an employment contract. Also, Glovo workers are subject to a permanent control system while providing the service by means of a GPS geolocation system.
Criteria 4:
The rating system of workers determines their freedom of choice of schedules because if they are not available to provide services in the time slots with the highest demand, his score decreases and with it the possibility of being assigned more services in the future. This is equivalent to losing employment opportunities and remuneration. In addition, the company penalizes delivery drivers by not assigning them orders when they are not operating in the reserved slots, unless there is a justified cause duly communicated and accredited.
Criteria 5:
Glovo workers have no involvement in the agreements established between Glovo and the stores and restaurants, nor in the relationship between Glovo and the customers to whom they served the orders. The workers do not close contracts with any of them, limiting himself to providing the services under the conditions imposed by Glovo. It is the company that agrees with the various establishments on the prices they pay and unilaterally sets the rates that the delivery person receives for the job performed.
Cuideo
Criteria 1:
The Spanish digital labour platform “Cuideo” controls a system of downward competition among its workers in the prices offered for the care services offered. The company has full control over the offers made by the workers.
Criteria 2:
The platform establishes different requirements for workers to access job offers through the platform, sometimes adapted to the specific needs of each client. These requirements are fulfilled through participation in courses organized by the platform ( upon payment by the workers to attend them) and the reading of different training manuals.
Criteria 3:
This monitoring is carried out through the platform's rating system, which is controlled by the company and on which employees may not object in the event of negative results.
Criteria 4:
Workers receive penalties for non-acceptance of offers in the form of fewer future job opportunities and even permanent disconnection from the platform.
Criteria 5:
Does not apply
Deliveroo
Criteria 1:
Not only the platform determines the remuneration, but workers are not aware of the level of remuneration before accepting the rides, since the information about the length (and therefore the payment) is not disclosed. The rejection of a ride after its acceptance entails penalisation for the workers.
Criteria 2:
Client’s ratings are used to allocate work in the future, therefore establishing a system of control and discipline based on customers' review which workers can redress but under the control of the platform.
Workers should use isolated bags provided by Deliveroo (upon payment) with the logos of the digital labour platform.
Criteria 3:
The performance is based on the above-mentioned customers’ review system.
Criteria 4:
Workers are sanctioned because of the refusal of jobs by being granted less opportunities or even the disconnection from the platform. At this regard, there is evidence of Deliveroo workers who took holidays were disconnected from the platform on the grounds of lack of availability for the job.
Another element of restriction of the freedom is again connected to the reputation ratings, which are platform-specific, and thus result in ‘lock-in’ effects for workers to that particular platform.
Criteria 5:
Like it is the case with similar digital labour platforms, Glovo workers do not participate on the terms and conditions of the agreements closed with the providers and the costumers – they simply deliver the food under the conditions stipulated by Deliveroo.
