Litigating the Algorithmic Boss in the EU: A (Legally) Feasible and (Strategically) Attractive Option for Trade Unions?

Abstract

Workers subject to algorithmic management, both in platform work and in conventional employment settings, often face a justice gap in enforcing their rights, due to the opacity characterizing most automated algorithmic decision-making processes. This paper argues that trade unions are in a more favourable position than individual workers to fill this justice gap through litigation, especially when collective redress mechanisms are available. However, this becomes possible only when the legal system is favourable to this type of litigation. This article analyses three legal domains at EU level where justiciable rights are more likely to be violated through algorithmic management devices, in order to assess whether it is legally feasible for trade unions to promote algorithmic litigation under EU law. Even when the legal framework is conducive to this type of litigation, it cannot be automatically expected that trade unions will more frequently resort to it to better enforce the rights of workers subject to algorithmic management devices. Previous research shows that trade unions are traditionally keen on turning to litigation only when they are able to link it to their broader strategies. This paper claims that this may be the case against employers using algorithmic management. For trade unions, resorting to litigation can be strategically instrumental not only to fulfil the legal purpose of alleviating the justice gap faced by workers through a better ex post enforcement of their rights, but also to achieve the meta-legal purpose of mobilizing them and the para-legal purpose of strengthening collective bargaining, especially considering that this would constitute an effective means to induce stronger ex ante compliance. Algorithmic Management, Platform Work, Algorithmic Transparency, Algorithmic Discrimination, Employment Protection, Data Protection, Trade Unions, Algorithmic Litigation, Collective Redress, Legal Mobilization, Collective Bargaining