A European directive targets platform work such as Uber, Bolt, etc. and introduces the presumption of employment. How does this affect the Czech test of dependent work?
Authors: Tomáš Burián, Zuzana Ďuríková
Directive (EU) 2024/2831 of the European Parliament and of the Council on improving working conditions in platform work (the “Directive”) is an EU regulation that affects the definition of the employment status of persons working for digital platforms and further regulates algorithmic work management in detail.
A digital labour platform is defined as a natural or legal person who, at the request of a service recipient via a website or mobile application, provides, at least in part remotely, a service consisting of the organisation of work performed for remuneration, both online and at a specific location, using automated monitoring or decision-making systems. The regulation thus establishes a special regime for the activities of entities such as Uber, Wolt, Bolt, various crowdworking platforms and similar models.
Member States must transpose this Directive of November 2024, and thus bring implementing regulations into force, by 2 December 2026.
The Directive aims to determine when a person working through a digital labour platform has the status of an employee, thereby ensuring transparent and fair working conditions even in an algorithmic work management environment. The Directive has a broad scope and applies to all digital labour platforms that organise paid work performed in the Union, regardless of their place of establishment or governing law.
A key element of the Directive is the rebuttable legal presumption of the existence of an employment relationship between the digital labour platform and the person performing work through the platform in those cases in which the platform exercises a certain degree of control or management over the performance of the work. The Directive expressly states that employment status is determined by the actual way in which the work is performed, taking into account the use of algorithms, whereas the contractual designation of the relationship by the parties cannot be considered authoritative. I.e., the presumption is designed in such a way that the burden of proof and the burden of argument are transferred to the digital platform, which must prove that the given relationship does not meet the characteristics of an employment relationship in the Member State concerned.
The Directive expressly refers to the legal regulations, collective agreements and customs of Member States when determining whether a person performing work through a platform is an employee of the platform or not.
In the Czech environment, digital platforms (and the Czech legislator when implementing the Directive) will have to deal with the definition of dependent work as set out in Section 2 of the Labour Code. According to the Labour Code, dependent work is an activity performed by an employee in person, in a relationship of superiority and subordination, on behalf of and according to the instructions of the employer, for consideration (i.e., a salary or remuneration), at the employer’s expense and responsibility, during scheduled working hours at the employer’s workplace or at another agreed location. The key features distinguishing dependent work from self-employment in doctrine and case law are, in particular, the organisational subordination of the employee, the personal performance of work and the performance on behalf of the employer, which enable the employer to continuously manage and control the work.
According to Section 3 of the Labour Code, dependent work may be performed exclusively in a basic labour-law relationship (employment relationship or agreements on work performed outside an employment relationship), unless regulated otherwise by special legal regulations. According to Section 5(e) of the Employment Act, work which displays the characteristics of dependent work outside an employment relationship is considered illegal unless permitted by other legal regulations.
Newly, in the case of work organised through a digital platform that exhibits characteristics of management and control, it will be presumed that the work is dependent work, and the burden of proof will shift to the platform which must refute this presumption.
The specific scope and impact of this Directive on the Czech labour market will depend on how it is transposed into Czech law.
Source:
Act No. 262/2006 Coll., Labour Code
Act No. 435/2004 Coll., on Employment
Directive (EU) 2024/2831 of the European Parliament and of the Council on improving working conditions in platform work