Acceso usuarios
Christina Hiessl
In recent years, judicial and administrative authorities around the world, including several European countries, gradually began to be confronted with questions on the classification of platform workers. Brought before the (labor, civil, business, and social security) courts and taken up by labor 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 (core aspects of) the criteria traditionally used to distinguish between employees and self-employed.
This contribution aims to give a comprehensive overview of this case law as of September 2021. It is based on the analysis of 175 judgments and administrative decisions in the fifteen European countries where platforms have so far been subject to such decisions: Austria, Belgium, Denmark, Finland, France, Germany, Ireland, Italy, Luxembourg, the Netherlands, Norway, Spain, Sweden, Switzerland, and the United Kingdom. A detailed overview of all the cases considered (including case numbers, dates, deciding bodies, links, outcomes, and the relevant legal reasoning) can be obtained from the author.
The analysis includes all cases in which an employment relationship was claimed or found to exist either with a company operating a digital platform or with a company using a platform to source its workforce. The analysis also extends to “gig” work for companies that are not strictly speaking platform undertakings but operate a similar “workforce”—such as parcel or food delivery businesses with a large pool of contractors without a specific obligation to provide work.
The contribution is structured as follows: Section 2 gives an overview of the decisions and their outcomes in relation to different platforms, and draws some conclusions on aspects not immediately related to the criteria used by the decision-making bodies. Section 3 develops an in-depth typology of the reasoning and rationales used by the courts across countries and assesses the emergence of dominant patterns. Section 4 sums up the core trends and offers some considerations on their significance in the light of recent changes in the work organization of several platforms. It concludes with some remarks on the way forward in adapting tests of employee status to the realities of the platform economy.
