Employees, workers and the ‘sharing economy’ Changing practices and changing concepts in The United Kingdom

Recent years have seen a radical shift in the practice and profile of the labour economy in the United Kingdom consisting in the considerable growth of the so-called ‘Sharing Economy’ or ‘Gig Economy’, better identified as the ‘On-demand Economy’. From that starting point, it is argued that a corresponding change seems to have occurred in the set of concepts which the labour/ employment law of the United Kingdom uses to analyse and to characterize the work relations and work contracts which are created, made, and operated within this rapidly growing sector of the labour market. Two recent high-profile Employment Tribunal decisions in the Uber and Citysprint cases, and a decision of the Court of Appeal in this same area in the Pimlico Plumbers case have served to confirm the legislative creation of a third intermediate category of ‘workers’ who benefit from a set of employment rights which is more limited than that enjoyed by employees but which is nevertheless very important. This crystallization of labour law’s newly tripartite taxonomy of work relations has occurred very largely in the context of the on-demand economy, and is beneficial to those located in that sector. This is, however, a rather fragile conceptual structure

Content marketplaces as digital labour platforms: towards accountable algorithmic management and decent work for content creators

YouTube is probably the world’s largest digital labour platform. YouTube creators report similar decent work deficits as other platform workers: economic and psychosocial impacts from opaque, error-prone algorithmic management; no collective bargaining; and possible employment misclassification. In December 2021, the European Commission announced a new proposal for a Directive ‘on improving working conditions in platform work’ (the ‘Platform Work Directive’). However, the definition of ‘platform work’ in the proposed Directive may exclude YouTube. Commercial laws, however, may apply. In the US state of California, for example, Civil Code §1749.7 (previously AB 1790 [2019]) governs the relationship between ‘marketplaces’ and ‘marketplace sellers.’ In the European Union, Regulation 2019/1150 (the ‘Platform-to-Business Regulation’) similarly provides protections to ‘business users of online intermediation services.’ While the protections provided by these ‘marketplace laws’ are less comprehensive than those provided by the proposed Platform Work Directive, they might address some of the decent work deficits experienced by workers on content marketplaces, especially those arising from opaque and error-prone algorithmic management practices. Yet they have gone relatively underexamined in policy discussions on improving working conditions in platform work. Additionally, to our knowledge they have not been used or referred to in any legal action or public dispute against YouTube or any other digital labour platform. This paper uses the case of YouTube to consider the regulatory situation of ‘content marketplaces,’ a category of labour platform defined in the literature on working conditions in platform work but underdiscussed in policy research and proposals on platform work regulation—at least compared to location-based, microtask, and freelance platforms. The paper makes four contributions. First, it summarizes the literature on YouTube creators’ working conditions and collective action efforts, highlighting that creators on YouTube and other content marketplaces face similar challenges to other platform workers. Second, it considers the definition of ‘digital labour platform’ in the proposed EU Platform Work Directive and notes that YouTube and other content marketplaces may be excluded, despite their relevance. Third, it compares the California and EU ‘marketplace laws’ to the proposed Platform Work Directive, concluding that the marketplace laws, while valuable, do not fully address the decent work deficits experienced by content marketplace creators. Fourth, it presents policy options for addressing these deficits from the perspective of international labour standards

Guest Editorial: regulating algorithmic management

This special issue of the European Labour Law Journal, edited by Jeremias Adams-Prassl, Halefom Abraha, Aislinn Kelly-Lyth, Sangh Rakshita and Michael ‘Six’ Silberman, explores the regulation of Algorithmic Management in the European Union and beyond. In our guest editorial, we set out the background to the project, introduce the reader to the key themes and highlights of the papers to follow, and acknowledge the support that the project has enjoyed

Privatisation, outsourcing and employment relations in Israel

This chapter focuses on the effect that outsourcing, as a subset of privatization, has had on employment relations in Israel. In particular, chapter highlights the adverse, and perhaps counter-intuitive, effects that the law has had on the plight of Israeli contract workers. Israeli governmental agencies and local councils have turned to outsourcing as a means to circumventing post limits and due to the Ministry of Finance’s pressures to increase ‘flexibility’ in the civil service. Intriguingly, paradoxically, and tragically, the law’s effort to regulate this growing phenomenon has led employers resorting to tactics which have redefined agency workers (teachers, nurses, etc) as workers subject to the “outsourcing of services” (teaching, nursing, etc). This has moved such workers into a legal void, depriving them of rights and protection

Regulating algorithms at work: Lessons for a ‘European approach to artificial intelligence’

This article scrutinises the potential of the existing regulatory apparatus in Union law to tackle the social, technical, and legal challenges inherent in deploying automated systems in high-risk settings such as the workplace, with a view to setting out key lessons for the proposed EU Artificial Intelligence Act. Surveying data protection and discrimination rules as well as the social acquis , it highlights key areas for further development, from coherence between different regulatory regimes to the role of social partnership in shaping key standards and monitoring their implementation

The notion of the employer in multilateral organisational settings

This thesis explores the notion of the employer in English employment law. It seeks to develop a functional reconceptualisation of that notion in the hope of overcoming the theoretical and practical problems resulting from the tensions inherent in the current approach. The first part of the thesis analyses the notion of the employer as counterparty to the contract of employment. Two conflicting strands emerge: the employer is simultaneously identified as a single party to a bilateral contract (the unitary strand) and defined through the exercise of a range of employer functions (the multi-functional strand). As a result of this tension, full employment law coverage is restricted to a narrow paradigm scenario where a single legal entity exercises all employer functions. Modern economic developments, from the rise of employment agencies and service companies to corporate groups and Private Equity investors, have however increasingly led to the joint exercise of such functions across multiple entities. The second part illustrates the practical implications of these developments: regulatory obligations are placed on inappropriate entities, and workers may even find themselves without recourse to any employment law protection. An additional chapter compares this situation with the notion of the employer in German law, where a sophisticated apparatus has been developed in order to address the particular challenges of employment in multi-entity scenarios, in particular in corporate groups. On the basis of these observations the final part of the thesis then proposes a reconceptualised notion. The employer is defined as the entity, or combination of entities, exercising functions regulated in a particular domain of employment law. Each of the two strands of the current notion is addressed in turn to demonstrate how this more openly multi-functional approach addresses the rigidities of the current notion without abandoning an underlying unitary conceptualisation. It is hoped that the resulting notion of the employer will be able to place employment law obligations on the entity, or combination of entities, exercising the relevant employer functions, regardless of the formal legal organisation of the enterprise in question.</p

The notion of the employer in multilateral organisational settings

This thesis explores the notion of the employer in English employment law. It seeks to develop a functional reconceptualisation of that notion in the hope of overcoming the theoretical and practical problems resulting from the tensions inherent in the current approach. The first part of the thesis analyses the notion of the employer as counterparty to the contract of employment. Two conflicting strands emerge: the employer is simultaneously identified as a single party to a bilateral contract (the unitary strand) and defined through the exercise of a range of employer functions (the multi-functional strand). As a result of this tension, full employment law coverage is restricted to a narrow paradigm scenario where a single legal entity exercises all employer functions. Modern economic developments, from the rise of employment agencies and service companies to corporate groups and Private Equity investors, have however increasingly led to the joint exercise of such functions across multiple entities. The second part illustrates the practical implications of these developments: regulatory obligations are placed on inappropriate entities, and workers may even find themselves without recourse to any employment law protection. An additional chapter compares this situation with the notion of the employer in German law, where a sophisticated apparatus has been developed in order to address the particular challenges of employment in multi-entity scenarios, in particular in corporate groups. On the basis of these observations the final part of the thesis then proposes a reconceptualised notion. The employer is defined as the entity, or combination of entities, exercising functions regulated in a particular domain of employment law. Each of the two strands of the current notion is addressed in turn to demonstrate how this more openly multi-functional approach addresses the rigidities of the current notion without abandoning an underlying unitary conceptualisation. It is hoped that the resulting notion of the employer will be able to place employment law obligations on the entity, or combination of entities, exercising the relevant employer functions, regardless of the formal legal organisation of the enterprise in question

The notion of the employer in multilateral organisational settings

This thesis explores the notion of the employer in English employment law. It seeks to develop a functional reconceptualisation of that notion in the hope of overcoming the theoretical and practical problems resulting from the tensions inherent in the current approach. The first part of the thesis analyses the notion of the employer as counterparty to the contract of employment. Two conflicting strands emerge: the employer is simultaneously identified as a single party to a bilateral contract (the unitary strand) and defined through the exercise of a range of employer functions (the multi-functional strand). As a result of this tension, full employment law coverage is restricted to a narrow paradigm scenario where a single legal entity exercises all employer functions. Modern economic developments, from the rise of employment agencies and service companies to corporate groups and Private Equity investors, have however increasingly led to the joint exercise of such functions across multiple entities. The second part illustrates the practical implications of these developments: regulatory obligations are placed on inappropriate entities, and workers may even find themselves without recourse to any employment law protection. An additional chapter compares this situation with the notion of the employer in German law, where a sophisticated apparatus has been developed in order to address the particular challenges of employment in multi-entity scenarios, in particular in corporate groups. On the basis of these observations the final part of the thesis then proposes a reconceptualised notion. The employer is defined as the entity, or combination of entities, exercising functions regulated in a particular domain of employment law. Each of the two strands of the current notion is addressed in turn to demonstrate how this more openly multi-functional approach addresses the rigidities of the current notion without abandoning an underlying unitary conceptualisation. It is hoped that the resulting notion of the employer will be able to place employment law obligations on the entity, or combination of entities, exercising the relevant employer functions, regardless of the formal legal organisation of the enterprise in question.This thesis is not currently available in ORA

Article 52: Twenty-Eight Shades of Interpretation?

Article 52 of the Charter of Fundamental Rights of the European Union (‘the Charter’) seems, prima facie, to have received rather divergent interpretations at the level of EU Member States. However, a closer look reveals that these divergences can mostly be understood as different shades of rather similar, or at least comparable, interpretations. As revealed by the analysis in this chapter, many discrepancies between Member States’ interpretations stem from divergent terminological use of legal notions from the Charter, rather than conceptual differences in the understanding of these notions. This is true, for example, of the meaning and scope of the proportionality analysis and the notion of the essence of fundamental rights. In a similar vein, the national reports show differences in the ways in which Member States interpret and apply Charter rights, but this does not mean that the content of the rights themselves is necessarily..