Daniel Carter, PhD – ‘There's “money law” and there's “people law” and I've always been more interested in the latter.’
Not everyone benefits from the increased flexibility in the labour market. EU migrant workers engaged at the lower end of the employment spectrum are falling behind. According to Daniel Carter, the legal system is at fault and in his PhD thesis he explains the reasons why.
Sometimes all it takes is a hunch. Back in 2015, most people were all in favour of tech platforms such as Amazon and Uber as they disrupted traditional markets. Not Daniel Carter. He somehow had an inkling that the gig economy would not benefit everyone.
Eight years on, the public debate about platforms has changed. Court actions brought by, or on behalf of, those working for the likes of Uber are plentiful and have had a knock-on effect on the reputation of platforms. The Dutch Supreme Court recently ruled that delivery riders engaged by former meal delivery service Deliveroo (a company that has now ceased operations in the Netherlands) should in retrospect have been considered as employees of the delivery service, and not as self-employed workers. The issue concerning Deliveroo is not an isolated case: judgments in similar cases, such as Uber and Temper (a platform for temping services in the hospitality sector), are expected in the coming months.
Carter, who started conducting research into the gig economy from an ideological perspective, has now completed his PhD research on the topic. In light of the above current events, the timing of his PhD thesis could not have been better and his research is therefore highly topical. Yet anyone speaking to Carter immediately senses that his focus lies with the workers and the effects of the increased flexibility in work.
‘Precarious workers’ and ‘precarious employment’
Carter has spent his time at Leiden University researching the rules affecting ‘precarious workers’ – individuals who have little security in work or power over their working situation. More in particular, he examined the position of one of the most vulnerable groups of all precarious workers: EU migrant workers. People who are already at the lower end of the employment spectrum and who have to navigate working in a different country, adding to their already insecure position. Examples are taxi drivers, lorry drivers, and those working in the hospitality sector, such as waiters and waitresses.
These EU migrant workers are engaged in ‘precarious employment’, examples of which include platform work, zero-hour and on-demand contracts, the repeated use of temporary/short-term contracts, and bogus/false self-employment.
The problem with the legal system
The main issue at stake is that different areas of law apply to EU migrant workers engaged in precarious employment. In a nutshell: not only EU law on free movement and social law apply to these workers, but also national migration and social security rules which are linked to their employment status.
Whereas EU law applies in all EU Member States in the same way, when it comes to national migration and social security rules the Member States often have exclusive jurisdiction. This set-up can be problematic when EU migrant workers find themselves in a situation where they need to rely on both areas of law. They risk being excluded from one or both areas of law due to their precarious employment situation.
EU law does not accommodate current-day modes of employment
Carter explains: ‘The issue is that the laws that traditionally deal with employment no longer accommodate the innovative modes of employment of the 21st century. Take the transportation platform Uber. These workers are being treated as self-employed in certain Member States. Yet under EU law, self-employed people are treated the same as a company. This means that both the platform and those working for the platform, taxi drivers, are – from the perspective of EU law – considered to be both companies. But this is at odds with the power dynamic that exists between the two parties.’
‘This is best illustrated by looking at the legal implications of this situation. Say the platform demanded that the taxi drivers provided their services to the customers at an artificially low price, below the operational cost, and the taxi drivers therefore collectively wanted to address the issue by uniting. They say to Uber: ‘we will no longer offer our services at dumping prices’. Under EU competition law, the taxi drivers would be considered to be engaging in collusion [collusion is the practice whereby two or more parties coordinate their actions, in this case by setting prices, thereby potentially restricting competition on the market, red]. Such practices are prohibited by EU competition law. One can imagine that from a social rights perspective, the fact that the taxi drivers are restricted by the law from standing together can create a problematic situation, because they run the risk of being exploited.’
The gig economy is not always as bad as it may seem
That said, over the years Carter has experienced a change in thinking: ‘When I first started my research on the gig economy, I started looking into the system from a mainly ideological perspective, one could say. From then on, I looked further into the changes in flexible working and particularly the hardcore legal aspects, which eventually led to my PhD. Though I did not do empirical research, I did occasionally end up speaking to Uber taxi drivers for example. It turned out that they were not all that displeased with their working situation. Perhaps my initial take on their employment situation was somewhat paternalistic. Still, many were somewhat reluctant to speak about the Uber set-up, so who knows what the full story is.’
Feasible solutions for the short term
Anyone dealing with European law knows this much: change is slow. So, while one could dream up solutions that may, or may not, be applied by lawmakers in the future, Carter favours a pragmatic approach to his research outcomes. ‘The solutions I propose are feasible in the short term. Perhaps my proposals do not radically overthrow the current system. But I would much rather have concrete proposals that actually stand a chance of giving EU migrant workers engaged in precarious employment better protection, than thinking that my research might not end up being put to good use.’
At present, any changes to unwanted situations or business models are only implemented as a result of specific cases brought before the courts. One example is the appeal case in the Netherlands between Uber and the Netherlands Trade Union, acting on behalf of the Uber taxi drivers, about the status of the Uber taxi drivers as employees or self-employed workers, zie the most recent judgment in the appeals case and the judgment of the district court Amsterdam. Yet, because of the nature of litigation – judgments only impact the parties involved and do not immediately have legal repercussions for other market players – these cases do not bring fundamental changes, whereas Carter sees the need for structural changes in the law.
So he has come up with a number of tests that could easily be applied by the courts and that adhere to the economic, political, and constitutional limitations of the (EU) legal system. That is not to say that he is necessarily opposed to radical reform of the current legal system: ‘My proposals could be stepping stones to more fundamental changes. If my tests are applied and the problems with the current system I have identified are not then resolved that in itself could support the argument that a fundamental overhaul of the legal system is needed.’
Interests and future plans
Asked about his motivation for the area of law of his PhD research, Carter says half-jokingly: ‘I sometimes say that in EU law there is “money law” and “people law” and I have always been more interested in the latter’. It is fitting that Carter is now continuing his career in London as a consultant on matters of civil liability. He assesses the lost career potential of those affected as a result of some type of liability. His cases concern, for example, personal injury, unfair dismissal or divorce. Carter speaks with the people who are affected, writes reports on their earning potential, which are then submitted to the court, and, where appropriate, he gives evidence to the court as an expert witness.
PhD Ceremony 19 April
The defence ceremony of the doctoral thesis ‘The European Precariat: The free movement of workers in the era of precarious employment’ will take place on Wednesday 19 April 2023. You can read the summary of the thesis here and access the livestream here.
Carter conducted his PhD research under the supervision of Christa Tobler, Professor of European Law at Leiden University and the University of Basel, and Moritz Jesse, Associate Professor at Leiden Law School.