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The position of the Member States of the European Union on the legal qualification of digital platform workers (I)

Fulvio Mannino

Doctorando Universidad de Urbino / Universidad de Sevilla

  Nota: esta entrada, por su longitud, se publicada en dos partes


 1. Introduction.

The phenomenon of the platform economy, typical of the Fourth Industrial Revolution, has had a significant impact on the traditional categories of labor law, so much so as to produce reflected effects on the categories of autonomy and subordination, whose demarcation line has been increasingly blurred. The main node addressed by this paper, therefore, is that of qualifying the employment relationship through digital platforms in some foreign legal systems[1], focusing the attention, in particular, on the Italian, English, French and Spanish contexts.

Furthermore, the analysis of the jurisprudence of the various legal systems can be useful in order to be able to define the results of the comparison; in this regard, given that often many sentences, even within the same legal system, are of the opposite sign, the comparison can be reasonable to verify the reasons.

With the clarification that the specification of the legal nature of digital platforms, to the extent that they carry out business activities, determines a significant effect also with regard to the profile of the qualification of the employment relationship.

In this regard, if the platforms can be considered companies, the possibility arises, de facto, (although there may be different solutions), that its collaborators work on behalf (and not simply in the name) of the platform itself and that, therefore, they are inserted in an entrepreneurial organization, of tangible and intangible means, owned and in the availability of the platform itself[2].

In this era of change due to the Fourth Industrial Revolution, the platform economy stands as a beacon of transformation, drawing new contours on the stage of working relationships.As the tumultuous tide of industrial transformation impacts traditional labor law categories, the qualification of employment relationships through digital platforms emerges as the focal point of this new legal composition.

In this constantly evolving context, the thin line between autonomy and subordination increasingly dissolves, placing the qualification of employment relationships mediated by digital platforms at the center of the debate.  


2. The qualifying problems of platform work in the experience of United Kingdom.


In Europe, one of the States most involved in the development of the platform economy is the United Kingdom, where the financial market crisis of 2008 amplified a phenomenon of precariousness and deregulation of the labor market that has been going on for some decades[3].

According to an estimate carried out by the Chartered Institute of Personnel and Development, up to March 2017 there were already 1.3 million (corresponding to 4% of employed people) workers operating in the gig economy sector[4].

In general, it should be noted that British law distinguishes three distinct types of figures in employment law.

Well, the first two find their regulation in Section 230 of the Employment Rights Act of 1996, which provides for the employee, who corresponds to the subordinate worker, entitled to the protections provided by the law itself, and the so-called worker, who represents the tertium genus which sees, in the face of the worker’s commitment to personally perform any performance or service in favor of the counterparty (who, it is necessary to specify, is not a customer or a client) the application of the protections provided by law with regard to the minimum wage, working hours, discrimination and the so-called whistleblowing.

Finally, the third figure is represented by the independent contractor, also known as a self-employed worker, who finds himself deprived of any protection, except that relating to discrimination[5].

Having made this brief general introduction, it should be highlighted how, in this context, the new «job economy» underlying platform capitalism has led to a shift of the workforce from the area of ​​subordinate work to that of self-employment[6].

Unlike what happened in other legal systems[7], however, the English legislator has not provided a specific answer regarding the need to protect people entering the labor market revolutionized by digital technologies.

Furthermore, both the definition, provided for by the aforementioned Section 230 (I), of the figure of the employee as «an individual who has entered into or works under a contract of employment«, and that relating to the employment contract itself, defined, once again once, by the same Section (II), as a «contract of service«, have contributed to making the present regulatory framework incomplete[8].

It is reasonable to understand, then, how it was up to the case law to identify those indices suitable for bringing a specific work activity back to the level of autonomy or subordination.

In this regard, first of all, there is the control of the employer, counted among the basic elements of every employment relationship, and historically linked to the civil liability of the employer (so-called “vicarious liability”) for the tort committed by the employee during the performance of duties.

The ratio of this responsibility is found in the prevention and control measures that can be adopted by the person who, in the employment relationship, is in a top management position.

The status of the subordinate worker is, therefore, with regard to the aforementioned characteristic, identified as negative, focusing the attention on the exercise of the employer’s powers of management and control, which deprive the worker of autonomy in the context of his activity[9].

Since the 1960s, jurisprudence has enucleated other indices which, in the wake of a shared approach in the systems of the Western legal tradition[10], contribute to the definition of the employee and the access of the latter to the related protections: the most important of these are the subjection of the provider to employer control in the execution of the contract and the functional integration in the organization of the client.

The summary enucleation of these indices is an expression of the conservative attitude historically assumed by the English Courts, which, instead of considering the concrete methods of carrying out the work performance, have relied on the qualifications provided by the parties, thus demonstrating a certain reluctance to interpret the employment contract by deviating from his letter[11].

To remedy this, from the end of the 1980s and, more incisively, from the second half of the 1990s, the legislator felt the need to ensure a minimum package of protections (paid holidays, minimum wage, applicability of the whistelblowing legislation , protection of health and safety, social security and tax contributions, the right to form trade unions to bargain at the category level) to the worker regardless of the formal classification in the subordination category (the so-called “worker”). Therefore, the audience of recipients of the protections originally envisaged for the employee alone was extended.

We can cite several legislative interventions, which played a role of primary importance in the famous case Uber v. Aslam, such as the Employment Rights Act of 1996, the National Minimum Wage Regulations of 1999, the Working Time Regulations of 1998, which establish, using an almost identical literal formulation, that the term «… ‘worker’ … means an individual who has entered into or works under … (a) a contract of employment; […] (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual[12] (Section 230 (3)(b)).

From this legislative definition, in order to verify whether the worker can be considered worthy of the protections granted to the figure of the employee, first of all, the need arises to ascertain the existence of three elements, which consist in the presence of a contract on the basis of which the worker undertakes the commitment to perform work or services in favor of another subject, in the commitment to the execution, especially personal, of the service and in the requirement, no less important, that the subject towards whom the service is rendered does not appear as a customer or purchaser of any professional service performed by the individual.In this way, it will be possible, although the autonomous nature is peaceful[13], to carry out the extension, to a large extent, of the discipline of subordination, subject, it is worth specifying, to the existence, in concrete terms, of a certain level of subordination or economic dependence on the client, so as to allow us to deduce that situation of economic weakness of the provider, similar to that of the employee [14].

Basically, the legislator did not intend to introduce an intermediate typological category between autonomy and subordination: his choice was rather to intervene in the area of ​​self-employment, enucleating within it a subgroup of relationships identified by some typifying features and from a position of substantial contractual weakness of the lender[15].

Subsequently, the qualifying issue came back into vogue in the English Courts in 2016, whose leading case focused, once again, on the Uber platform, against which some drivers had decided to appeal to the judge in order to obtain the right to the minimum wage and paid holidays, conditional, however, at least on the recognition, in favor of said workers, of the status of workers, or employees, unlike the platform which, instead, (intended to demonstrate its nature as an infrastructure digital and intermediation companies between drivers and customers) considered them as independent contractors.

Therefore, the Employment Tribunal of London, in 2016, attributed to these workers, in light of the management and control power exercised by the platform, the formal qualification of workers, recognizing, consequently, the protections regarding the legal minimum wage and paid holidays[16].The Court, essentially, based its decision on the practices used by Uber in stipulating the contract, and, drawing inspiration from a precedent of the Supreme Court, namely the case Autoclenz Ltd. v. Belcher[17] also applied the principles relating to false contracts (so-called sham contracts) to those employment contracts, including that of the case in question, in which the employer unilaterally prepares the content of the contract, followed by mere acceptance by the worker), which establish the prevalence of actual reality as a valid criterion for interpreting a specific contract, when it does not correspond to the one actually intended and has the aim of defrauding a third party or the law.This is a decision that was confirmed[18] both by the Employment Appeal Tribunal, following Uber‘s appeal of the ruling[19], and by the Supreme Court, which anchored the formal qualification of the employment relationship between the parties to analysis of their behavior, given the non-existence of any written contract between drivers and Uber

In particular, the Court denied the existence of elements which, on the one hand, would allow the platform to be considered as an intermediary between drivers and customers (since it is Uber that stipulates contracts with passengers and hires drivers to carry out the service covered by the contract) and, on the other hand, did not allow the employment relationship to be classified as autonomous, given the unilateral determination of the rate and all the terms of the performance of the service by the platform, or, consider, the possibility, by Uber, to influence the possibility for the driver to accept a ride, or, again, by the power of control exercised through the driver evaluation system and all those measures adopted by the platform in order to limit communication between passenger and driver to the minimum necessary to allow the provision of the service[20].

Finally, we see the opportunity to cite two other sentences on the qualifying topic (and the related protections), one of which concerns a cycle driver on the CitySprint platform and another on the riders of the Deliveroo platform.Well, while the first seems to fully agree with the Employment Tribunal‘s conclusions regarding Uber[21], the second, however, approached the issue differently. In particular, the trade union IWGB attempted to obtain recognition of a collective bargaining unit, but both the Central Arbitration Committee[22] and the High Court [23]rejected the request.Such a decision was based on the presence of a substitution clause in Deliveroo‘s contracts[24], such as to allow riders to be replaced, arguing that this aspect classifies them as self-employed workers rather than workers, therefore excluding the application of trade union laws specifications.This is an interpretation strongly criticized by the doctrine[25] for not having respected the jurisprudence previously established by the Autoclenz ruling, which, on the contrary, would have considered the replacement clause excessively onerous for cycle drivers and should have led to the qualification of riders as workers.


3. The legal regulation of digital workers in French law. 

3.1. The regulatory framework. 

Of great interest is the French context, in which, before the legislative intervention of 2016, the resolution of the qualification problem was left to the judges, who had the responsibility of expressing themselves on concrete cases, assessing from time to time the nature of the individual relationship of work[26] .

In the same year the c.d. Terrasse report, from the name of the deputy who edited it, from which the need to standardize platforms emerged, considered as new workplaces[27].

In this regard, the art. 49 of L. 1321/2016, which amended L.111-7 of the Consumer Code, set out in art. 49 of law no. 1321 of 7 October 2016, defined the platform as any natural or legal person who professionally and, possibly, in exchange for remuneration, provides an online communication service based on the classification, by means of computer algorithms, of contents, goods or services offered or uploaded online by third parties as well as on the intermediation between multiple parties for the purpose of selling a good, providing a service or exchanging or sharing contents, goods or a service.

Furthermore, the same provision provides for clear and transparent information requirements regarding the conditions of operation or functioning of the contents or services provided[28].

It is clear that the definition of platform, as devised by the French legislator, tends to express the peculiar economic reality on which the platform economy is centered, which consists of a collaborative and an uberized economy[29].

The legislator, with the Law n. 1088 of 2016, dictated specific legislation to protect self-employed workers: pursuant to art. 60, it is generally assumed that platform workers are self-employed[30], or travailleurs independants.

However, this is not an ope legis qualification, since the legislator simply intended to limit the scope of application of the law (and related protections) solely to self-employed workers who carry out their professional activity through one or more platforms[31]. Conversely, the discipline of subordinate work will be applicable if the conditions are met in practice.

The peculiarity of this legislative choice can be found in the provision of specific protections ((the right to accident insurance, continuous training (if they work for a certain time), the collective rights to join trade unions, to bargain collectively and to go on strike)) for self-employed workers who collaborate with one or more platforms, which interfere in the activity of the former, thus determining the characteristics and price of the service offered[32]

.It is clear how the French legislator, from the arguments developed so far, has not taken a precise position on the qualifying problem; rather, he focused his attention on the creation of a minimum protection network for this category of workers, constituting, within the existing categories, a subjective path reserved for the occurrence of certain requiriments[33].

With the clarification that the legislator, in identifying the above protections, has leveraged the hybrid nature of the activities in question, also reconciling the need to protect workers with the need not to overload an activity in the of great growth.

It should also be noted that the French law, pursuing the objective of dealing with the precarious situation affecting self-employed workers, and given the non-genuineness of the requirement of autonomy itself[34], bases the recognition of these rights of digital workers on social responsibility of the platform[35].


3.2. The response of French jurisprudence on the question of qualification.

 A partial answer regarding the qualification problem seems to have been provided, finally, by the French jurisprudence, which initially recognized platform workers as self-employed.

In this regard, the Court of Paris, in the context of a dispute between an Uber driver and the platform, excluded the existence of subordination, leveraging some indices that favored the autonomy of the service, such as ownership of the vehicle in the hands of the driver, the failure to exercise control power (over the hours worked) and the freedom to decide when to work and which trips to accept, up to and including disconnection from the application[36]

.The same orientation was followed in the case of another jurisprudential decision, concerning the legal qualification of a Deliveroo delivery driver, both because the methods of execution of the service were not determined unilaterally by the platform, and due to the absence of a integration of the provider into the client’s organisation, and, again, for the presence of freedom as to quando (when) the work is performed[37].

These are, however, sentences that have raised doubts in the doctrine, which, although it does not deny the freedom of providers in choosing shifts, has nevertheless supported how, from the moment of login, said freedom is destined to vanish, given the obligation, it is up to the workers to accept the trips arranged by the platform, under penalty of the imposition of the sanctions provided for by the contracts[38].

It appears more evident than ever, then, that in this case the existence of a directive and disciplinary power is perfectly recognisable, which implies a legal requalification of the relationship in the sense of subordination.

So clarified, the sentence of the French Chambre Sociale[39] is worthy of mention, in the case of the «Take Eat Easy» platform, which qualified the employment relationship between the parties in terms of subordination.

The reason for this qualification can be found, on the one hand, on the principle of prevalence, for qualifying purposes, of the actual performance of the service on the documentary will of the parties and, on the other hand, on the exercise of a power of control (geolocation system) and sanction (disconnection from the platform) by the company[40].

This decision was the subject of comment by the doctrine, which highlighted how the Court opted for the subordinate nature of the employment relationship, on the one hand, without, however, operating a new and broader definition of the subordination itself and, on the the other, identifying it, in the case in question, on the basis of already existing indices abundantly used by French jurisprudence; in accordance with the latter, in fact, subordination is recognized by the subjection of the work performance to the authority of the employer, who, as is clear, holds the power to issue orders, directives, the power of control regarding the exact execution of the service and to impose sanctions on the worker[41].

This approach was also shared, following Uber‘s appeal of the sentence issued in the first instance proceedings, by the Paris Court of Appeal[42] and by the Cour de Cassation[43] itself, which classified the drivers as subordinate workers of the platform, highlighting, mainly, the element of worker integration into the company structure

.In particular, the Court of Cassation highlighted how the performance of the Uber driver is instrumental and integrated within the business organization of the platform, which unilaterally prepares the conditions for the performance of the service.And it is clear that, on the basis of these premises, the French Supreme Court considered the provider’s «freedom» regarding the an (if) and quantum (how much) of the service to be practically non-existent, considering the presence of those clauses arranged unilaterally from the platform, which, to a certain extent, exert a certain pressure on the worker, who can only carry out the activity in order to avoid the deactivation of the account.

From the considerations carried out, it emerges that the trend of the French legal system sees, on the one hand, the legislator implicitly leaning towards the autonomy of the performance of platform workers, through the provision of specific rules, and, on the other hand, an incisive intervention, in a requalification sense, of jurisprudence, in the cases in which a fictitious autonomy is recognized capable of hiding a relationship of dependence, as demonstrated by the sentences analyzed above by the Cour de Cassation[44]. 






[1] F. ALIFANO, “La qualificazione del lavoro mediante piattaforme digitali negli ordinamenti esteri”, in, 2021, 5, p. 1.

[2] G. PACELLA, “Il lavoro tramite piattaforma digitale nella giurisprudenza dei Paesi di civil law”, in, 2019, 5, 1, p.p. 17-21.

[3] M. FORTI: “L’economia collaborativa davanti alla Corte di Giustizia dell’Unione Europea: alcune riflessioni a margine della sentenza Uber Spain”, Riv. it. dir. pub. com., 2019, p. 515.

[4] Ricerca condotta da Chartered Institute of Personnel and Development, “To gig or not to gig? Stories from the modern economy”, 17 marzo 2017.

[5] V. PIETROGIOVANNI, “L’importanza di chiamarsi lavoratori, ossia delle corti del Regno Unito alle (p)rese con il lavoro a chiamata attraverso le piattaforme”, in Labour & Law Issues, 2019, 5, 1, p. 46.

[6] L. MASON: “Locating Unity in the Fragmented Platform Economy: Labor Law and the Platform Economy in the United Kingdom”, Comp. Lab. L. & Pol’y J., 2020, p. 329; N. WHITESIDE: “State Policy and Employment Regulation in Britain: an Historical Perspective”, Int’l J. Comp. Lab. L. & Indus. Rel., 2019, p. 379.

[7] J. DIRRINGER: “Progetti e sviluppi normative per la tutela del lavoro nelle piattaforme digitali in alcuni Paesi europei e nell’Unione Europea”, RGL, 2017, 2, p. 147.


[9] See “Performing Right Society Ltd. v Mitchell & Booker” Ltd, 1 KB 762 [1924], nonché “Mersey Docks and Harbour Board v Coggins and Griffiths (Liverpool)” Ltd, A.C. 1, [1947].

[10] G. SMORTO e A. QUARTA, “Diritto privato dei mercati digitali”, Le Monnier, Milano, 2021, p. 137; M. A. CHERRY, “The Sharing Economy and the Edges of Contract Law: Comparing U.S. and U.K. Approaches”, Geo. Wash. L. Rev., 2017, p. 1815.

[11] G. DAVIDOV, “Who is a worker?”, Indus. L.J., 2005, p. 63.

[12]  Si riporta letteralmente il testo della sezione 230(3)(b).

[13] The definition provided by Baroness Hale of Richmond in Bates van Winkelhof v Clyde & Co LLP [2014] UKSC 32, where we read that “employment law distinguishes between three types of people: those employed under a contract of employment; those self-employed people who are in business on their own account and undertake work for their clients or customers; and an intermediate class of workers who are self-employed but do not fall within the second class”.

[14] Il leading case in these hypothesis concerns the case Byrne Brothers (Formwork) Ltd v Baird, [2002] ICR 667, where we read that p. 2(4)  “The reason why employees are thought to need such protection is that they are in a subordinate and dependent position vis-à-vis their employers: the purpose of the Regulations is to extend protection to workers who are, substantively and economically, in the same position”.


[16] Employment Tribunal di Londra, 28 ottobre 2016, Aslam and Farrar vs Uber, EW n. 2202551.

[17] Supreme Court of the United Kingdom, 27 luglio 2011, Autoclenz Ltd. v. Belcher, UKSC n. 41.

[18] Employment Appeal Tribunal, 10 novembre 2017, Uber BV v Aslam and others, UKEAT n. 0056/17/DA.

[19] England and Wales Court of Appeal (Civil Division), 19 dicembre 2018, Uber BV v Aslam and others, EWCA Civ n. 2748.

[20] Supreme Court of the United Kingdom, 19 febbraio 2021, Uber BV and others v Aslam and others, UKSC n. 5.

[21] Employment Tribunal di Londra, 5 gennaio 2017, Dewhurst v. CitySprint UK Ltd., EW n. 2202512/2016. About, V. PAPA, Economia digitale e lavoro on demand tra scenari futuristici e fughe all’indietro, in Impresa, lavoro e non lavoro nell’economia digitale, op. cit., 506,  where it is observed that in the decision «preeminent importance seems to have been assigned to the extensive power of control exercisable – and exercised in practice – by the supervisors of the work performance of the couriers through electronic instruments, so much so as to allow the judges to use, for the supervisors, the definition of “chess players who move pieces [riders] on the board”.

[22] Central Arbitration Committee, 14 novembre 2017, Independent Workers’ Union of Great Britain (IWGB) v. RooFoods (‘Deliveroo’), n. TUR1/985.

[23] England and Wales High Court, 5 dicembre 2018, Independent Workers’ Union of Great Britain (IWGB) v RooFoods (‘Deliveroo’), EWHC n. 3342, caso n. CO/810/2018.

[24] Central Arbitration Committee, 14 novembre 2017, Independent Workers’ Union of Great Britain (IWGB) v. RooFoods (‘Deliveroo’), n. TUR1/985, par. 100.

[25] V. PIETROGIOVANNI, L’importanza di chiamarsi lavoratori, ossia delle corti del Regno Unito alle (p)rese con il lavoro a chiamata attraverso le piattaforme, op. cit., p. 60. In supporto f the thesis del Central Arbitration Committee is, instead, M. BIASI, “Uno sguardo oltre confine: “i nuovi lavori” della gig economy. Potenzialità e limiti della comparazione”, in Labour & Law Issues, 2018, 4, 2 p. 13.

[26] See the judjments of Conseil de Prud’Hommes de Paris, 20 dicembre 2016, n. 14/11044, and Conseil de Prud’Hommes de Paris, 5 settembre 2016, n. F15/0164.

[27] P.BARBEZIEUX,C.HERODY, “Rapportau Premier Ministre sur l’économie collaborative”,2016, 41.

[28] E. SIGNORINI, “Il diritto del lavoro nell’economia digitale”, G. Giappichelli Editore, Torino, 2018, p. 201. In this renard, the frame work of the obligations of the platforms is completed with the fiscal obligations provided for the Code général des impôts all’art. 242 bis, as amended by art. 10 della legge n. 2018-898 del 23 ottobre 2018.

[29] Ibidem, 208.


[31] V.CAGNIN, “Gig economy e la questione qualificatoria dei gig-workers: uno sguardo oltre confine”,in, 2017,41.

[32] E. GRAMANO, “La nozione di lavoro subordinato alla prova della gig-economy (sessione II), in, p. 8.

[33]  A. PERULLI, “Economia digitale e qualificazione dei rapporti di lavoro, in Impresa, lavoro e non lavoro nell’economia digitale”, in (a cura di) Guaglianone Luciana, Alessi Cristina, Barbera Marzia, in Impresa, lavoro e non lavoro nell’economia digitale, Bari, Cacucci Editore, 2019, p. 430.


[35] T. TREU, “Rimedi, tutele e fattispecie: riflessioni a partire dai lavori della Gig economy”, in, 2017, 3-4, p. 384.

[36] Conseil de Prud’Hommes de Paris, 29 gennaio 2018, n. F16/11460, Menard v. Sas Uber France.

[37] Cour d’Appeal de Paris, 22 novembre 2017, n. S16/12875, in Riv. it. dir. lav., 2018, 1, II, 63, with  note from A. DONINI, “La libertà del lavoro sulle piattaforme digitali, con riguardo ai riders di Deliveroo”, 2018.

[38] A. FABBRE, “Plateformes numériques: gare au tropisme “travailliste”!”, in Revue de Droit du Travail, 2017, 3, p. 170.

[39] Cour de Cassation, Chambre Sociale, 28 novembre 2018, n. 1737.

[40] G. PACELLA, op. cit., pp. 25-27.

[41] E. DOCKES, “Le salariat des plateformes. À propos de l’arrêt TakeEatEasy”, in Le Droit Ouvrier, 2019, 846, p. 8; G. PACELLA, “Il lavoro tramite piattaforma digitale nella giurisprudenza dei Paesi di civil law”, in Labour & Law Issues, 2019, 5, 1, p. 28. The reference here is on the notion of subordination elaborated by Court of Cassation itself in the sentence Société générale (Cour de Cassation, Chambre sociale, 13 novembre 1996, n. 94-13187).

[42] Cour d’Appel de Paris, 10 gennaio 2019, n. 18-08357, in Bulletin Joly Travail, 2019, 2, 8, with note from B. KRIEF, “Enétant un travailleur «constraint”, le chauffeur Uber devient un salarié.

[43] Cour de Cassation, Chambre Sociale, 4 marzo 2020, n. 374. For a comment: A. DONINI, “Secondo la Cassazione francese Uber è datore di lavoro”, in Labour & Law Issues, 2020, 6, 1,  p. 4.

[44] M. BARBIERI, “Della subordinazione dei ciclo fattorini”, in Labour & Law Issues, 2019, 5, 2, p. 32.


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