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Navigating Employment Law Changes: The Impact of the Flexible Working Act and Platform Workers Directive in 2024 – ARTICLE FROM ISSUE 236 – JUNE 2024

Organisations need unambiguity and clarity, lag, reems of red tape, repeal, contradiction and u-turn conspire to fuel even greater confusion and conflict. As of July 2024. As the world of work shudders with strain and vacillates with uncertainty, as various iterations of hybrid/flex are time-trialled and tempered, employment law is itself in a state of flux. The flexible working act – covering rights to request flexibility over part time, term time, flexitime, compressed hours and adjustable start and finish times – will hopefully shine a beacon of light ahead for a new era in.

The aim of the platform workers directive is to improve working conditions and protection of personal data in platform work(1). The directive will affect any digital labour platform using people who carry out platform work in EU member states, regardless of where the organisation operates from or is established.

To begin, it’s worth pointing out that purely internal company platforms that organise the work of their own workforce – “internal crowd working” – are not subject to the Directive. There are three key planks within the Directive: There is a presumption of employment status for platform workers (Article 5). This means that a person performing platform work through that platform, shall be legally presumed to be in an employment relationship. This will radically change the face of gig economy work in Europe, with great swathes of individuals claiming employment status and associated rights, without cumbersome and expensive litigation. Provisional agreement was reached to implement the Platform Workers Directive in February 2024 and member states are likely to have two years to implement it. There are limitations on the processing of personal data, by means of automated monitoring or decision making systems (Article 7). This is significant because companies using AI tools to manage people have access to vast amounts of data. Coupled with machine learning, these companies can make significant predictions and decisions about people. One limitation proposed by the Directive is a ban on processing data to predict if a person might seek to join a trade union, which gives a sense of how intrusive AI tools can be, if not carefully regulated. Transparency obligations are also proposed (Article 9). For example, the fact that AI tools are being used to make decisions about people would need to be disclosed, along with information as to the data processed, how that data is processed and the basis on which certain decisions are made, such as the suspension or termination of an account.

Tech companies do not typically have country specific AI tools. Rules in Europe will indirectly impact on the UK. For example, if tools in, say, Italy have to meet certain standards or requirements, then by default the same or similar standards will be rolled out in the UK. Just as significantly, the requirement for transparency may well galvanise claimants in the UK. An explanation as to how an algorithm operates in France, for example, will provide plenty of information to people in the UK, who are subject to similar systems. One of the biggest barriers to litigation in the UK is that workers typically do not know how technology is making or supporting decisions about them. The issue being, is data being processed fairly? Is there any evidence of discriminatory practices or impact? The Platform Workers Directive will change that reality and will encourage litigation. Indeed, there has already been successful litigation against Deliveroo in Italy after it was found that the shift allocation algorithm used there was discriminatory(2). Hot on the heels of the Platform Workers Directive is The EU AI Act, which has received final sign off and will lay down cross-sectoral rules on the use of AI echoing similar themes, such as the importance of transparency. Here in the UK, similar changes are afoot. The TUC published its Artificial Intelligence (Regulation and Employment Rights) Bill following work by a cross-party Special Advisory Committee. The Bill aims to regulate the use of AI in relation to workers, employees and jobseekers. Employers who anticipate these changes and start to review their business models now will be well-placed to ride out the disruption.

1 Source: Council of Europe website.
2. Source: Bologna Labour Court in Filcam VGIL Bologna and others v Deliveroo Italia SRL.


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