HR in the Know 14/2024

On 11 November 2024, Directive 2024/2831 of the European Parliament and of the Council (EU) of 23 October 2024 on improving working conditions in platform work (the "Directive") was published in the Official Journal of the EU.

The Directive essentially addresses two main issues: (i) the employment conditions of persons performing platform work, specifically the correct determination of whether a given person should be recognised as an employee and benefit from the full rights and protection granted to those employed under an employment relationship, and (ii) providing minimum rights and protection for individuals whose work is subject to algorithmic management, i.e. meaning where the actions of workers are wholly or partially directed, controlled, and evaluated by various automated systems based on artificial intelligence (AI), machine learning, and digital algorithms.

The Directive thus fits into two heated debates taking place both at the level of the European Union and within individual member states – the first concerning the status of gig workers under labour law and the longstanding issue of false self-employment, and the second regarding the increasing influence and role of artificial intelligence in employment.

Who does the Directive cover?

It is worth noting that the Directive does not apply to all digital platforms, but only to digital labour platforms tasked with organising work performed by individuals in return for payment within the territory of the European Union. The key element here is the organisation and management of the work of individuals by the platform.

The Directive explicitly states that the definition of a digital labour platform subject to the Directive does not include service providers providing services whose primary purpose is exploiting or sharing of assets (e.g., platforms that enable the rental of a bicycle or specialized tools, or short-term holiday rentals of apartments or houses) or platforms that allow individuals who are not professionals to resell goods (e.g., used clothing or toys).

The criterion of work organisation also distinguishes digital labour platforms subject to the Directive from online platforms through which a service provider can find clients and where end-users can find a desired specialist, without further involvement of the platform in the execution of the ordered service. Thus, platforms whose role is limited solely to the publication of service announcements (offers) or allowing the location of entrepreneurs with a specific service profile in the nearby area are also excluded from the Directive.

In addition to the essential element of work organisation of individuals, under the adopted regulations, a digital labour platform will be considered as such if a natural or legal person collectively meets the following conditions: (i) provides a service that is provided, at least in part, at a distance by electronic means, such as by means of a website or a mobile application, (ii) the offered service is provided at the request of a recipient of the service, and furthermore (iii) involves algorithmic management.

It can therefore be suspected that most popular platforms in Poland offering, for example, passenger transport, meal deliveries or courier services may be considered digital labour platforms within the meaning of the Directive. Consequently, individuals providing services or working for them will benefit from the rights provided by the Directive.

Presumption of the existence of an employment relationship

The legal solution that drew the greatest interest (and at the same time controversy) during works on the Directive is the presumption of the existence of an employment relationship.

Member States have been obliged by the Directive to implement effective procedures that will allow for the verification and correct determination of whether a person performing platform work is an entrepreneur (self-employed) or whether they should actually be recognised as an employee (a person employed under an employment relationship). The decisive factor in assessing the employment status of a person will be the actual manner in which the service is performed, regardless of how the legal relationship was labelled in the agreement between the parties.

Such procedures already exist in Polish law — a contractor can demand a judicial determination by a labour court of the existence of an employment relationship between the parties if, in practice, the services are provided in a manner characteristic of an employment relationship, particularly under the direction and in the place and time designated by the employing entity.

A new solution introduced by the Directive is the establishment of a legal presumption of the existence of an employment relationship.

According to Article 5 of the Directive, it is legally presumed that the contractual relationship between a digital labour platform and a person performing platform work through that platform is an employment relationship if there are factual circumstances indicating direction and control, in accordance with national law, collective agreements, or practices applicable in Member States and taking into account the case law of the Court of Justice. The Directive also provides a number of further procedural solutions aimed at facilitating the determination of employee status. The most significant of these is the shift of the burden of proof to the employing entity – if the digital labour platform contests the employee status of a person performing platform work, it will be for this digital labour platform to prove that the legal relationship between the parties is not an employee-employer relationship.

As a result, following the implementation of the Directive into Polish law, a higher risk of reclassification of civil law contracts into employment contracts and court cases on this matter can be expected. It cannot be ruled out that the implementation of the Directive will force digital platforms to significantly alter their model of cooperation with current contractors as well as their business models, and in extreme cases, even to limit or change their business profiles.

The implementation of the Directive may also have a significant impact on the professional activity of certain groups of employed persons for whom platform work was considered occasional or by-work, and for whom taking up full-time employment within an employment relationship might not have been possible (e.g., due to caregiving responsibilities).

Algorithmic management

The Directive also introduces a range of legal provisions related to the use of algorithms for managing the services of persons performing platform work. In particular, the Directive imposes extensive information obligations on digital platforms towards the individuals working for them, their representatives, and state authorities regarding, among other things, the automated monitoring and decision-making systems used by a particular digital platform.

The Directive also emphasises the obligation to provide human oversight over the aforementioned automated systems. In particular, certain employment-related decisions must be made solely by a human, and furthermore, a person performing platform work should have the opportunity to appeal to a "human instance" against a decision made by an automated system.

The Directive also introduces specific restrictions on the processing and collection of certain categories of personal data in order to prevent significant breaches of the privacy of a person performing platform work and to prevent the potential use of such sensitive data against that person in a work-related context (e.g., as a basis for discrimination). The following activities will be prohibited among others: (i) the processing of personal data concerning the emotional or mental state of a person performing platform work, as well as personal data regarding private conversations, including communication with other persons performing platform work and their representatives, by means of automated monitoring or decision-making systems, (ii) the collection of personal data of persons performing platform work while they are not offering or performing platform work, (iii) the processing of biometric data, as well as personal data to infer the racial or ethnic origin, migration status, political opinions, religious or philosophical beliefs, disability, state of health, including chronic disease or HIV status, emotional or psychological state, trade union membership, sex life or sexual orientation.

Implementation of the Directive in Poland

Member States will be required to implement the Directive by 2 December 2026.

In connection with the adoption of the Directive, the biggest debate in Poland concerns whether the presumption of the existence of an employment relationship should cover only those performing platform work or whether this presumption should apply to all individuals employed on a basis other than an employment relationship. According to the Chief Labour Inspector, this presumption should be extended to all areas of economic activity.

It cannot be ruled out that if the implementation of the Directive does not require a change in the current definition of an employment relationship as set out in the Labour Code, it will at least provoke further discussion on who should be considered an employee under Polish law, particularly in light of new models of performing work.

The implementation of the Directive will also provide an opportunity for further discussion on the regulation of the use of artificial intelligence and other digital solutions in the area of employment. The President of the Personal Data Protection Office will undoubtedly play a key role in this discussion.