Spanish riders law and the right to be informed about the algorithm

New law

The Spanish Government enacted a Royal Decree Law (RDL) 9/2021 of 11 May. Its main goal is safeguarding the employment rights of people engaged in delivery services via digital platforms. It includes two provisions: i) the presumption of employment in digital delivery platforms; and, ii) the impact of algorithms on work in any company using these modern technological systems. Specifically, it establishes the right of workers’ representatives to be informed about algorithms’ parameters, rules and instructions (where these algorithms relate to decision-making about working conditions). This regulation has been agreed by the main employers’ association, Spain’s leading trade unions and the Spanish Government.

Presumption and reversal of the burden of proof

The first provision of RDL 9/2021 amends the Workers’ Statute (WS) by inserting a new presumption of employment for workers of delivery platforms. The new Article states: ‘The activity of persons who render paid services consisting of the delivery or distribution of any consumer product or merchandise for employers who directly, indirectly or implicitly exercise the corporate powers of organisation, management and control 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.’

The new legislation does not amend the concept of worker, (i.e. it does not have any substantive effects), but rather only affects the burden of proof. Thus, the personal scope of application of the WS is still as set in its Article 1. In respect of the burden of proof, the regulation does not add anything new in terms of the presumption of employment either. In Spain, Article 8.1 of the WS already recognises the presumption of employment for all service providers who perform remunerated activities. Hence, this specific presumption for the delivery sector is restricted to clarifying that the presumption of employment (that already existed under Art. 8.1 WS) also applies in cases of algorithmic control of workers (including when this control is indirect or implicit).

Algorithmic transparency

The GDPR regulates a company’s obligation to inform the worker when automated processing and profiling methods are used (Articles 13, 14, 22 GDPR). This individual right has often been infringed, ¹ either because the individual worker has been unable to learn when this obligation was not being met or due to the worker’s own fear of reprisals if they decided to complain about it. Consequently, the literature has criticised the GDPR for leaving out the collective and trade union aspects of the workplace, and for not having afforded workers’ representatives information and negotiation rights concerning the algorithm. ²

RDL 9/2021 remedies this ‘defect’ by introducing a new paragraph d) in section 4 of Article 64 of the Workers’ Statute referring to the information rights of workers’ representatives. The wording now states that workers representatives need to be informed by the company about the parameters, rules and instructions on which the algorithms or artificial intelligence systems affecting decision-making that may have an impact on working conditions and access to and maintenance of employment, including profiling, are based.

This means the Works Council will be entitled to learn not only whether there is an algorithm which makes decisions or influences working conditions and access to or the maintenance of employment, but also to ascertain the parameters, rules and instructions for the operation of the algorithm. It is important to note that this obligation applies to all types of companies (whether platform-based or not) and all types of sectors. This means that the right of workers’ representatives to know how the algorithm works includes all kinds of companies after the adoption of this regulation.

The main difference between the information rights in the new Article 64 WS on algorithms and the regulation of Article 22 GDPR is that the former are collective and the latter are individual. Additionally, RDL 9/2021 affords information rights to workers’ representatives in many more cases than Article 22 GDPR, albeit with lesser effects. Thus, triggering Article 22 GDPR requires that the automated decisions are taken without significant human intervention. ³ By contrast, Article 64(4)(d) WS only requires that such algorithms affect decision-making that may have a bearing on the worker. Hence even if the algorithm is used purely to support the employer’s decision-making, Article 64(4)(d) WS will apply. In other words, even when the algorithm is not decisive to the final decision taken about the worker, its mere use will mean that the information rights of the workers’ representatives will be triggered. As a result, Article 64(4)(d) WS will be applicable in many more cases than Article 22 GDPR.

Assessment of the regulation

The regulation analysed here has some very constructive aspects along with others that are perhaps less helpful. Three aspects, in particular, may be criticised. Firstly, the extremely limited scope of the new presumption of employment, which is restricted only to the digital platform delivery sector and leaves out the rest of the digital platform sectors. The second aspect which might be challenged is the legislative technique used. Given that there is already a presumption of employment in Article 8.1 WS, the new specific presumption, if it is understood as a rebuttable presumption, does not add much to the legal content of the Workers’ Statute. A third criticism is that having opened the legislative can of worms, the opportunity has not been seized to put forward a solution to the issue of working hours and days in platform work or the issue of the possibility of working for several platforms at the same time. These are issues which, although they can be used to exclude formal employment, do not fully dovetail with the legal system of the salaried worker. As has been pointed out elsewhere, ⁴ these specialities should be regulated in the employment contract by a special law or a collective agreement.

The upsides are as follows. Firstly, although the Spanish Supreme Court had already concluded that riders had employee status, ⁵ the fact that platform companies still do not comply with these rulings seems to have forced the legislator to put pressure on them to comply with formal employment status through a law. Secondly, the rule downgrades the level of dependency required to classify workers as employees. In my view, this represents further progress towards tailoring the concept of worker to the 21st century.

In short, the regulation seeks to settle the debate on the applicability of employment rights in platform work, albeit without any assurances that it will actually be achieved. Nevertheless, the regulation is a first step in the right direction. In this respect, the agreement reached as part of social dialogue that has become law represents a clear stand being taken by the social partners and the Spanish Government against ‘technological determinism’. In other words, there is nothing intrinsic to new technology that makes it incompatible with labour regulation. So although it is restricted to the delivery sector, the fact is that the wording suggests that the sector is not what is relevant: the important thing is to have decided that the new technological options – digital algorithms and platforms – are simply the means used to perform an economic activity, and therefore people who render services within their scope should be considered as employees.