Legalisation of riders and access to algorithms

The Government has approved Royal Decree Law 9/2021 of 11 May to guarantee the labour rights of persons engaged in delivery on digital platforms, even going so far as to regulate access to the profiles and algorithms used in the sector.

The Council of Ministers has approved, by means of a Royal Decree-Law, the labour rights of people dedicated to delivery in the field of digital platforms, which amends the revised text of the Workers’ Statute Law, in order to guarantee the rights of these people.

In this way, the Workers’ Statute introduces the presumption of employment in the field of delivery platforms:

• By application of the provisions of Article 8.1, the activity of persons who provide paid services consisting of the delivery or distribution of any consumer product or merchandise, by employers who exercise business powers of organisation, management and control directly, indirectly or implicitly, by means of algorithmic management of the service or working conditions, through a digital platform, is presumed to be included within the scope of this law.

In short, the aim is to provide protection for workers who provide services under forms of business organisation and management other than the traditional ones, albeit in a dependent and subordinate regime, subject to control of processes and results.

The text thus incorporates the criterion established by the Supreme Court in Ruling 805/2020 of 25 September, the first ruling issued in a unification of doctrine, reinforcing the interpretation made in recent years by the Labour and Social Security Inspectorate, although it has been limited to delivery companies, leaving out of its scope of application other activities that had also been questioned, such as those that organise personnel or self-employed people who provide care for people.

This rule will enter into force next 12/08/2021 giving the companies affected (such as Amazon, Glovo, Deliberoo, Ubereats, etc.) time to adapt to the new situation.

The regulation of the algorithms of digital platforms is a demand included in the “World Employment and Social Outlook” report, published by the International Labour Organization after noting the growing market presence of these companies (777 digital platforms worldwide) and their high influence on the regularity of work, income and collective bargaining. The ILO director general himself pointed out at the time, at the presentation of the report, that “due to the platforms’ policy of non-disclosure of data, it is very difficult to estimate the real volume of workers employed through these platforms”.

The new regulation specifies the information and consultation rights of workers’ representatives, who must be informed by the company of the rules on which the algorithms or artificial intelligence systems are based, which affect decision-making that may affect working conditions, access to and maintenance of employment, including profiling.

This is the first legislation that incorporates access to information on the parameters, rules and instructions of AI algorithms that affect employment decision-making.

In view of the increasing use of these and other technologies in business and their interaction with labour relations (algorithms, blockchain, AI, etc.), we will closely follow any new developments we have within our reach in order to be able to inform our clients in an updated manner.