Online Platform Work and Work Environment Law: A Scandinavian Legal Perspective

2.1 Scope of the Scandinavian Work Environment Acts

We turn next to another important area of comparability: the scope of the Scandinavian work environment regulations. Here we examine the three countries’ regulations with regard to the distinction between employee and non-employee.

The primary scope of application for all three Scandinavian work environment Acts is the work performed by an employee for an employer.¹⁷Here, however, the approach diverges: Norwegian law defines employer and employees, in contrast to the Danish and Swedish laws, which both lack such definitions.

Despite these differences, employees are covered by the countries’ work environment Acts. As the majority of platform workers are categorised as self-employed, an initial distinction¹⁸ can then be drawn between: 1) whether the self-employed are themselves responsible for complying with the work environment Acts; and 2) whether work performed, if not for an employer but instead for other parties, is covered by the Acts.

Considering these two points further, firstly, in both the Swedish and Norwegian legislation, the self-employed are not themselves obliged to comply with health and safety regulations.¹⁹ Under Danish law, the self-employed are only partially responsible for complying with the law concerning their own work. Secondly, all of the Acts contain exceptions, whereby their scope of application covers work performed not only for an employer but also for other parties.²⁰

The Danish Work Environment Act only applies in part where the work is being conducted, not for an employer, but instead for other parties. An example of this limitation is that the self-employed do not have to follow the rules addressing rest and breaks.²¹ However, the self-employed are still required to plan, organise and execute work in a manner that ensures health and safety.²²

The Swedish Work Environment Act applies with modifications to work other than for an employer.²³ This has the effect, for example, of the self-employed not needing to follow rules aimed at preventing harmful working positions and harmful work movements. However, under both Swedish and Danish law, self-employed persons without any employees must still follow the rules on technical devices and risks from hazardous substances.²⁴ In Sweden, both the Working Environment Act chapter 2 § 1 and also the Working Hours Act regulate rest and breaks.²⁵ However, the Working Hours Act has a narrow focus: it applies to any activity where employees perform work on behalf of an employer, but it does not cover the self-employed.²⁶

In Norway, by comparison, the Norwegian Work Environment Act embraces a wider scope of themes than the Danish and Swedish Acts. In particular, the Norwegian Act includes protections against dismissal and against discrimination. However, as noted above, a review of these areas falls outside the ambit of this article.

With regard to coverage for the employed versus the self-employed, the Norwegian Ministry of Labour and Social Affairs has authority to issue regulations stating that the rules of the Work Environment Act shall apply either in whole or in part to businesses that do not employ employees.²⁷ This enables the Ministry to lay down regulations that extend the scope of the Work Environment Act to, among other things, self-employed professionals without employees.²⁸

The Norwegian Labour Inspectorate (Arbeidstilsynet) has stated that self-employed professionals who do not employ workers have limited obligations to implement work environment provisions.²⁹ One of these limited obligations concerns, for example, companies whose workers handle asbestos and asbestos-containing material during their working lives.³⁰ Another example of this are companies that perform work under water or in a pressurized atmosphere.³¹ Also included in this category is work with biological elements and chemicals. This latter regulation on chemicals also applies to the self-employed under the Danish regulation.³²

On the other hand, the Norwegian legislation imposes no requirements concerning systematic risk assessment, routines, prevention, planning, etc. on platforms which are without employer liability. Therefore, the individuals themselves must act appropriately and responsibly to organise their work, taking into account health and safety.³³

A common ground in the Scandinavian Work Environment Acts is therefore that they either do not apply, or only apply partially, to self-employed persons. The categorisation of legal status – i.e. employee or self-employed – is therefore of significant importance for the level of work environment protection. In this regard, when assessing the status of an employee versus a self-employed person, the Nordic countries share a similar path.³⁴ These criteria lean toward EU law and the derived EU case law.³⁵

In case law from the CJEU, the essential feature of an employment relationship under Article 45 of the Treaty on the Functioning of the European Union (TFEU) is that a person performs services for and under the direction of another person for a certain period, in return for which s/he receives remuneration. The activities performed must be effective and genuine.³⁶

A new proposal for a Directive on improving working conditions in platform work was issued on 9 December 2021 by the European Commission.³⁷ This proposal addresses the issue of legal status with a requirement for ‘Member States to have in place appropriate procedures to verify and ensure the correct determination of the employment status of persons performing platform work’ (Article 3). Furthermore it states:

The provision also clarifies that the correct determination of the employment status should be based on the principle of the primacy of facts, i.e. guided primarily by the facts relating to the actual performance of work and the remuneration, taking into account the use of algorithms in platform work, and not by how the relationship is defined in the contract. Where an employment relationship exists, the procedures in place should also clearly identify who is to assume the obligations of the employer.

The explanatory memorandum to the proposal addresses health and safety at work as part of the protection granted by the Charter of Fundamental Rights of the European Union (CFREU). Article 7 covers human monitoring of automated systems and stipulates that ‘Member States shall ensure that digital labour platforms regularly monitor and evaluate the impact of individual decisions taken or supported by automated monitoring and decision-making systems, as referred to in Article 6(1), on working conditions’. Moreover, it states:

without prejudice to Council Directive 89/391/EEC and related directives in the field of safety and health at work, digital labour platforms shall: (a) evaluate the risks of automated monitoring and decision-making systems to the safety and health of platform workers, in particular as regards possible risks of work-related accidents, psychosocial and ergonomic risks; (b) assess whether the safeguards of those systems are appropriate for the risks identified in view of the specific characteristics of the work environment; (c) introduce appropriate preventive and protective measures.

The new proposal thus offers rights in addition to the Working Environment Directive 89/391/EEC, which is already implemented in the national legislation of the Scandinavian countries. While not broadening the personal scope of the countries’ work environment laws, the proposal nonetheless expands the health and safety protections for platform workers in its Article 7. However, the scope of protection remains unclear and potentially limited to minimum rights, and a further investigation into the Scandinavian national legislation on work environment remains relevant.

With regard to the scope of that legislation, the question is still whether online platform workers are conducting work for an employer and are thereby fully covered by the Work Environment Act in question, or whether they are instead self-employed and therefore only partly covered, or are simply not covered at all. Both government reports and case law have contributed to shedding light on this legal dispute, the details of which are analysed in the following sections.

4.1 Swedish Case on Cool Company

In a recent case from 2019 in the Swedish Court of Appeal (Kämmerrätten),⁴⁶ the issue of work environment responsibility for platform workers (self-employed) was addressed by a Swedish court for the first time. Cool Company is an online platform offering administrative services to the self-employed. They ensure that the salary arrives in the platform worker’s account after the invoice has been sent and the customer has paid.

In 2016, the Swedish Work Environment Authority inspected a building where a self-employed construction worker was working on a roof. The inspection found that there was no protection against falling and that the fall height was two metres or more. The Swedish Work Environment Authority claimed that due to this failure to protect the worker, Cool Company was required to pay a fine of SEK 400,000, with the size of fine being calculated based on the total number of the company’s workers. Cool Company resisted payment of any such penalty fine.

In the administrative court (Förvaltningsrätten i Stockholm⁴⁷), Cool Company stated it considered itself to have been the employer but was of the opinion that the company could not be considered liable for the working environment at the workplace in question.

Cool Company stated that they helped with administration and invoicing but did not have any contact with the end customer. Therefore, they argued, the party who hired the roof worker was responsible for the working environment and was also responsible for the roof worker using the right health and safety protections.

The administrative court found that in relation to the roof worker, Cool Company was an employer. However, the court held that since Cool Company had no agreement with the roof worker’s customer, this meant that Cool Company did not manage the site where workers were working on a roof without fall-protection equipment, and therefore Cool Company could not control the working environment in that workplace. As a result, the administrative court held that Cool Company did not have responsibility under the working environment law.

The Swedish Work Environment Authority appealed the case to the Court of Appeal, which pointed out that, in order for the work to be considered as being performed on behalf of Cool Company, it was necessary for the latter to have entered into an assignment agreement with the roof worker’s customer before the work began. However, at the time of the Swedish Work Environment Authority’s inspection, Cool Company was not party to any contract with that customer. The court stated that the fact that Cool Company subsequently invoiced the work, paid salaries and made certain that other social commitments were fulfilled in relation to the roof worker was of no significance in this context. In addition, and contrary to the administrative court’s ruling, the Court of Appeal concluded that Cool Company was not an employer and therefore could not be charged a penalty fee. The Swedish Work Environment Authority submitted an appeal to the Supreme Administrative Court but this was rejected in January 2021, and as a result the 2018 judgment stands.

This Swedish case sheds light upon online platform work and the challenges posed by the work environment. The administrative court ruling demonstrates that regardless of Cool Company’s legal status as employer, it is not sufficient to establish a work environment responsibility per se. Additionally, there must also be some kind of management of the work site. This view goes against tradition, where work environment law only needs the categorisation as employer or of a certain kind of subordination link to apply in order to activate the status of employer and thus benefit from the legal protections ensuing from that status. Overall, the case to date demonstrates an unclear work environment responsibility, even when protection is needed.

The particular characteristics of online platform work mean that there is an amplified need for protection; the work is not necessarily situated in the same physical workplace as that of the end customer, and platform workers are often alone, having contact with both the platform company and the end customer through an app or software.⁴⁸ From a work environment law perspective, this complicates the ability to take care of and contribute to a healthy and safe work environment. It is thus questionable whether the current legal framework is sufficient to ensure acceptable protection against occupational health and safety risks.

4.2 Danish Case Law on Cleaning Service Platforms

In Denmark, the Danish Competition and Consumer Authority has addressed two cases in 2020 regarding online platform work.⁴⁹ These two cases concerned the cleaning platforms Hilfr and Happy Helper and their use of minimum prices on their digital platforms. In both cases, the Danish Competition Authority had conducted unannounced inspections at the companies on the basis of competition concerns about potential illegal coordinated practices. It should be noted that there is a prohibition on coordinated practices restricting competition between competing companies; see section 6 of the Competition Act and Article 101 TFEU.

If we look first at the Hilfr case, this examined whether the cleaners were employees or self-employed. As was outlined in the case, Hilfr has a business model where cleaning workers start out as freelancers. After 100 hours of work via the Hilfr platform, the cleaning workers can choose whether they want to continue as freelancers, or instead become employees (when they become so-called ‘Super Hilfrs’) and are then covered by a collective agreement with 3F.

The Danish Competition Council⁵⁰ assessed that none of the categories of cleaners were employees in the sense of competition law, despite having employment contracts with Hilfr. Key arguments in the case were the lack of management, supervision, and sanctioning powers of Hilfr. Furthermore, the Competition Council placed emphasis on flexible working hours and the burden of the economic risks for the online platform workers as characteristic for their being self-employed.

In the Happy Helper case, on the other hand, the business model was only for freelance workers. Here, the Danish Competition Council’s assessment was that helpers on the platform were not workers in the sense of competition law.

The cases are interesting for several reasons. First, the concept of employee in the competition law and in the labour law have certain overlaps. In the Hilfr case, the Danish Competition Council considered the entire group of Super Hilfrs to be self-employed. However, a concrete assessment of individual Super Hilfrs could have a different legal outcome, where some of them could be considered as workers from a labour law perspective. If competition authorities have taken the view that specific persons perform self-employed work, the labour law bodies will then probably not consider them to be covered by a collective agreement. Thus, there is potential for legal challenges between competition law and labour law when entire groups are categorised instead of specific concrete assessments.

However, in the Hilfr case, Hilfr has committed to tightening the power of instruction and taking over the financial risk, which is why Super Hilfrs can retain their employment status. The competition law cases can thus give an indication of the legal status of online platform workers, but to obtain a final determination of the concept in a labour law context, it needs to be tested in specific cases before the courts within such a labour law perspective.

Second, these cases demonstrate that regardless of whether the cleaning workers are employed or self-employed, they face the same work environment risks. This calls for attention when drafting future occupational health and safety regulation.

4.3 Norwegian Case Law on Aleris

In the Aleris case,⁵¹ twenty-four plaintiffs worked as care workers in a housing facility for people with substance abuse problems/mental illness. They worked in shifts as self-employed workers. Due to the regulation’s lack of coverage of self-employed workers’ working hours, they worked long shifts. The main question in the case was whether the plaintiffs were regarded as employees, with protections under the Working Environment Act and with the right to e.g. sickness benefits, pension earnings, job security etc., or whether they were instead self-employed.

Oslo District Court (Oslo Tingrett) initially stated that most of the protection rules in the Work Environment Act only apply to employees, not to consultants and the self-employed. The basic function of the concept of employee is to designate who should have protection.⁵² The court ruling stated that the concept of employee is still blurred, and the borders are unclear; see Chapter 8 in the Work Environment Act. For care workers, the classification can be questionable, and the conclusion can vary, even between similar types of work. Thus, the overall assessment may be different for individual cases.

The court then conducted individual assessments for all of the plaintiffs. The court placed particular emphasis on the issue of whether the individuals saw themselves as employees or as self-employed. In some of the individual assessments, the plaintiffs did not want to be employees, but merely self-employed. In these cases, the court considered whether the plaintiff had adequately reflected on, and was free to choose and was informed about, the consequences of being self-employed. In some of the individual assessments the court accepted the choice of being self-employed, whereas in others they decided that the protection considerations were strong, which could indicate that even persons who did not themselves want the protection were nonetheless considered employees.⁵³

The tipping point to be categorised as self-employed was found to be where the self-employed person had made the decision on a free, well-considered and well-informed basis. Furthermore, the Court emphasised that individuals in the self-employed category had knowledge of the lack of protection in terms of working environment.⁵⁴ The court ultimately upheld the claims of only eleven of the twenty-four plaintiffs to be considered employees rather than self-employed.

Twenty-two of the plaintiffs appealed to the Borgarting Court of Appeal (Borgarting Lagmannsrett). In June 2021, the Borgarting Court of Appeal⁵⁵ delivered their judgment in the appeal case, upholding the plaintiffs’ claims in their entirety. However, the Court of Appeal used a different reasoning than the District Court.

First, the Court of Appeal stated that the classification of employee status rests on an overall assessment. Moreover, they placed great emphasis on seven criteria that would be determinative of an employee relationship: 1) personal service; 2) subordination; 3) the employer provides work facilities, tools etc; 4) employer’s commercial risks; 5) remuneration in some form of salary; 6) stable relationship of the parties involved; and 7) the degree of independence (work for only one client).

Although stating that the list is not exhaustive, the Court of Appeal highlighted personal service and subordination (the employer’s management and control) as the two most important criteria. When examining both of these criteria, the Court held that the circumstances in the case suggested that there was an employee relationship. Furthermore, the Court found that the employers had essentially provided premises and other things that are necessary to carry out the work tasks. The Court majority considered that this pointed in the direction of employee status.

The Court of Appeal also addressed the District Court ruling and its focus on the plaintiffs who had themselves expressed the need and desire to be self-employed. This view was not upheld by the Court of Appeal and was addressed as running counter to the consideration of equal assessment of identical job categories – as exemplified by two plaintiffs conducting completely identical work but being classified differently.⁵⁶

This part of the Court of Appeal’s judgment entailed a subtle critique of the weight of discretionary assessment in the District Court. Following individual assessments of each plaintiff’s circumstances, the Court of Appeal upheld all of the plaintiffs’ claims in their entirety.

In December 2021, the Supreme Court rejected the employer’s appeal⁵⁷ and the ruling by the Court of Appeal is therefore final.

The rulings by both the District Court and Court of Appeal are interesting for several reasons. First, despite the statutory definition of a worker in Norwegian law, the cases show that the determination of the concept of worker is still complicated and that a number of factors are included in a specific assessment. Second, the District Court case demonstrates that individuals within a group who are conducting similar work are not necessarily all in the same labour category. Eleven out of twenty-four were categorised as employees, whereas the rest were self-employed, showing the significance of an individual assessment. It also emphasises the argument made above in relation to Danish case law, where a group of cleaning workers were categorised as a whole. The District Court case could give rise to a questioning of this form of group categorisation. Even though the Court of Appeal concluded that all of the plaintiffs were employees, it still conducted individualised assessments, which potentially could lead to different outcomes.

If we compare the Norwegian government report and the Aleris case, the former stated that the Norwegian Work Environment Act was equipped to handle online platform work. The Aleris case poses questions about this assertion. The case emphasises that the distinction between self-employed and employee is an ongoing legal conundrum, with significant impact on work environment rights and protections.