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

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

To begin with, it is worth noting that purely internal company platforms that organize the work of their workforce – “internal crowd working” – are not subject to the Directive. There are three key points within the Directive: There is a presumption of employment status for platform workers (Article 5). This means that a person who performs work on the platform through that platform will be legally presumed to be in an employment relationship. This will fundamentally change the face of gig economy work in Europe, with large numbers of individuals claiming employment status and related rights without burdensome and expensive litigation. Interim 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 restrictions on the processing of personal data, by means of automated monitoring or decision-making systems (Article 7). This is important because companies that use AI tools to manage people have access to large amounts of data. Coupled with machine learning, these companies can make important predictions and decisions for humans. One limitation proposed by the Directive is the ban on processing data to predict whether 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 for humans must be disclosed, along with information about the data processed, how that data is processed and the basis on which certain decisions are made. , such as suspending or closing an account.

Tech companies typically don’t have country-specific AI tools. The rules in Europe will indirectly affect 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 set in the UK. Equally significantly, the demand for transparency may well boost claimants in the UK. An explanation of how an algorithm works in France, for example, will provide a lot 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 usually don’t know how technology is making or supporting decisions about them. The question is, is the data being processed fairly? Is there any evidence of discriminatory practices or impacts? The Platform Workers Directive will change this reality and encourage litigation. Indeed, there has already been a successful lawsuit against Deliveroo in Italy after it was found that the shift distribution algorithm used there was discriminatory(2). Hot on the heels of the Platform Workers Directive is the EU AI Act, which has been given the final tick and will set out cross-sectoral rules for the use of AI echoing similar themes such as the importance of transparency. Here in the UK, similar changes are ahead. The TUC published its Artificial Intelligence (Regulation and Employment Rights) Bill following the work of a cross-party Special Advisory Committee. The bill aims to regulate the use of AI in relation to workers, employees and job seekers. Employers who anticipate these changes and begin rethinking their business models now will be well-positioned to overcome disruption.

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

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