Article 3 in the Platform Work Directive on intermediaries: Joint liability or joint employment?

This contribution explores a lesser discussed provision in the new Platform Work Directive (‘PWD’): Article 3 on ‘intermediaries’ (originally titled ‘subcontracting liability’ by the EP). Article 3 is possibly the most ambiguous provision in the Directive, for three reasons: the unusual drafting history of Article 3, the wording of Article 3 itself and, the amount of flexibility left to Member States to interpret Article 3 as they choose. Ultimately this means that Article 3 will likely have very divergent impact in practice. Article 3 provides that individuals providing work for an intermediary should enjoy the same level of protection ‘pursuant to the Directive’ as those contracting directly with digital labour platforms. There is also reference to joint and several liability, ‘where appropriate’. At the very least under Article 3, the employment presumption in Article 5 should also apply to intermediaries and the provisions on algorithmic management should apply directly to those in a subcontracting chain. The contribution details the unusual drafting history of Article 3, then contrasts Article 3's fit with other EU provisions on ‘subcontracting’, before discussing whether it was intended as, or might be interpreted as, alternatively a provision on joint liability or on joint employment. The final section provides a brief reflection on the concept of the employer, in light of the PWD.