The proliferation of digital platforms and the irruption of new technologies in the field of labour relations have presented a challenge for our regulatory system. The main challenge has been the legal qualification of riders, given the controversy in relation to the possible existence of an employment relationship between the riders and the platforms (such as Glovo, UberEats, Deliveroo or Stuart).
At this particular juncture, judicial pronouncements on the nature of the relationships have been disparate, placing riders linked to the delivery sector in a legal limbo. In order to resolve the dilemma, the Spanish Government addresses the issue in Royal Decree 9/2021, the content of which is endorsed by the agreement between the main employers' association and the main trade unions.
The legal text has a single article and two final provisions that modify two extremes of the Workers' Statute. On the one hand, it establishes the presumption that delivery drivers working for digital platforms are employees and not self-employed. In particular, the 23rd Additional Provision introduces in the Workers' Statute the presumption of employment relationship of the individuals carrying out activities of delivery or distribution of any type of product or merchandise, when the company exercises its powers of organisation, management and control, by means of algorithmic management of the service or working conditions, through a digital platform. This provision reproduces the criteria and parameters established by the Supreme Court in Ruling 805/2020 of 25 September, which was the first ruling issued in unification of doctrine, establishing the employment status of riders. Thus, the Rider law does not open the door to the existence of a different type of relationship, assuming that it is an employment relationship, and obliging the celebration of employment contracts.
In relation to the vacatio legis, the platforms have 3 months to regularise the situation and register their delivery personnel, with the entry into force of the regulation on 12 August 2021. From that moment on, the affected companies will have to pay social security contributions for all riders, as well as guaranteeing them the rights and coverage corresponding to employees, such as: breaks, paid holidays, allowances, etc.
On the other hand, the Rider law regulates for the first time the right of employees’ representative bodies to be informed by companies of algorithms or artificial intelligence systems with a possible impact on working conditions, hiring or maintenance of employment. Specifically, the Royal Decree-Law introduces a new letter d) in Article 64.4 of the Workers' Statute, establishing the company’s obligation to inform the employees’ representatives of the work algorithms. According to the new wording, the legal representatives of the employees’ have the right to be informed of the parameters, rules and instructions on which algorithms or artificial intelligence systems are based that affect decision-making that may have an impact on working conditions, access to and maintenance of employment, including profiling.
Therefore, this obligation concerns all companies that operate through algorithms or artificial intelligence systems. However, the employees’ representatives may not disclose information to third parties, as they are subject to the duty of confidentiality.
Finally, with regard to its acceptance, although the new consideration of riders as employees is a great achievement for many collectives, the reality is that there is no unanimous opinion on the matter in the sector of delivery riders and the companies that employ them. For example, for trade union organisations such as UGT and CC.OO, the Rider law should have been more ambitious and gone beyond delivery drivers, as its current wording is insufficient for the reality and needs of the digital economy sector.
Anyway, there is no doubt that the Rider law establishes a new normality that affects not only those digital platforms in our country that kept riders as false self-employed, but also all those companies that apply algorithms at work. However, the fact that it has been drafted without taking into account the main actors (restaurants, platforms and delivery drivers) has raised uncertainty in the sector, where there is a demand for a global regulation for digital platforms, with a much broader scope of application.