^{*Doç. Dr., Bilkent Üniversitesi Hukuk Fakültesi}

Who are gig workers, and what do they do? For an illustration, consider what you would do without food or market delivery during the Covid-19 pandemic lockdowns. Or what about transportation services provided by Uber-like platforms where no taxicab stops on a rainy day? Today not only through food delivery and transportation but also to name a few; for now, gig workers provide services in caregiving, hospitality and travel, digital freelance services, and
education.

Requiring a free-market system gig economy is the “economic activity that involves the use of temporary or freelance workers to perform jobs typically in the service sector.”¹ With the rise of the digitalization of services, the gig economy added a new form of employment called online or platform work. First, it emerged with the 2008 economic crisis and then became a general working way with the Covid-19 pandemic, this new type of employment is apparent without a doubt. Today, gig worker is widely used to define people working for online platforms. According to a study², the number of gig workers on a global scale, which was 43 million as of 2018, is expected to increase to 78 million by 2023.

The problem with gig workers is their legal status because they are not regarded as workers in some countries. For instance, Uber drivers are recognized as workers in France and the United Kingdom. On the other hand, they are accepted as independent contractors in the USA. Identifying gig workers as independent contractors will result in them not being able to benefit from the social rights enjoyed by the workers and the nonliability of the online platforms in breach of the services provided by these companies. It is not surprising that one of the managers of Foodora, after the strike of delivery riders in Italy, stated that working for Foodora is “a way to earn some money for those who love cycling rather than a real job.”

Instead of a permanent employment relationship, online platforms offer individuals or organizations access to gig workers to provide a service. The continuation of the employment of gig workers mostly depends on their performance. In this regard, there are serious concerns about the legal status of gig workers. The European Observatory of Working Life (EurWORK) observes these concerns as “unstable working hours and income, lack of coverage of employment rights, uncertainty around social security and pensions, lack of access to career development and training.”³ There are indeed plenty of EU Directives covering the social protection of workers. But the problem here is that until recently, the EU did not have a concrete reply to the argument of online platforms indicating that they are not service providers but just online applications. With this argument, these companies become immune from their legal obligations to the people working for them and cannot be held liable for their employees, the gig workers. Relatively late in 2017, the European Parliament, the Council, and the Commission announced the European Pillar of Social Rights at the Gothenburg Summit. Setting 20 fundamental principles, the European Pillar of Social Rights aims to guide “a strong social Europe that is fair, inclusive and full of opportunity in the 21st century.”⁴

After the European Pillar of Social Rights proclamation, the judgment of the Court of Justice of the European Union (CJEU) in Asociación Profesional Élite Taxi v. Uber Systems Spain SL⁵ is not a coincidence. Bringing an action before the Commercial Court in Barcelona, the Asociación Profesional Élite Taxi claimed that Uber Systems Spain infringed the national law on taxi services in general. While the respondent, Uber Systems Spain, argued that as a smartphone application, it does not provide transportation services but an intermediation service between the drivers and the passengers. The Commercial Court in Barcelona then asked
for a preliminary ruling from the CJEU to clarify whether services provided by Uber are transportation services. The judgment of the CJEU may look like a case concerning competition law, but it also says much about the working conditions of gig workers. Known as the Uber case, CJEU, in its judgment, determined that Uber provides transportation services meaning that the company will be subject to stricter rules and should comply with EU and member states’ social
security laws. Thus, in 2021 the UK Supreme Court ruled in Uber BV and Others v. Aslam and Others that Uber drivers must be recognized as workers, not independent contractors. According to the wording of this judgment,

“Drivers are in a position of subordination and dependency in relation to Uber such that they have little or no ability to improve their economic position through professional or entrepreneurial skill. In practice, the only way in which they can increase their earnings is by working longer hours while constantly meeting Uber’s measures of performance [101]. The
Supreme Court considers that comparisons made by Uber with digital platforms which act as booking agents for hotels and other accommodations [103 – 108] and with minicab drivers [109117] do not advance its case. The drivers were rightly found to be “workers” [119].”⁶

The most recent development in the working conditions and the rights of gig workers in Europe is the adoption of Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union.⁷ Repealing Directive 91/533/EEC with effect from 01.08.2022 Directive 2019/1152 aims to secure the rights of people working in new forms of employment. According to the preamble of Directive 2019/1152, paragraph 4,

“Since the adoption of Council Directive 91/533/EEC (4), labor markets have undergone far-reaching changes due to demographic developments and digitalization leading to the creation of new forms of employment, which have enhanced innovation, job creation, and labor market growth. Some new forms of employment vary significantly from traditional employment relationships with regard to predictability, creating uncertainty with regard to the applicable rights and the social protection of the workers concerned.”⁸

Directive 2019/1152 on Transparent and Predictable Working Conditions covers essential aspects of working conditions. To name the most important ones regarding the scope of this blog, Directive 2019/1152 guarantees workers with unpredictable working conditions (i.e., on-demand work) to be informed within a reasonable time before the work is completed. It also issues measures to prevent the abuse of on-demand workers whose contracts do not include precise working hours.

Gig workers of the EU might feel relief with the application of Directive 2019/1152 in the Member States. Still, the future with fast and vast digitalization is unpredictable and challenging for everyone, not just the workers. What is next?