In three linked judgments (known as the ‘Robo-Firing case’), the Amsterdam Court of Appeal upheld the appeal of a group of drivers against the ride-hailing companies Uber and Ola Cabs. The drivers brought claims for breaches of the EU General Data Protection Regulation (“GDPR”) concerning decisions made using opaque algorithms which included managing, fining and sacking workers.
Significantly, the Court of Appeal rejected Uber’s attempt to rely on ‘humans in the loop’, who were supposed to have reviewed and checked the algorithms’ decisions (overturning the first instance decision on this point). The Court found that on the facts such reviews were “not… much more than a purely symbolic act”. In consequence the algorithmic decision-making was ‘solely automated’, and the drivers’ rights not to be subject to automated decision making for significant decisions under GDPR Article 22 were engaged, as well as the right to an explanation under GDPR Articles 13-15.
With respect to the right to an explanation of algorithmic decisions, the Court also rejected both companies’ cross-appeals, in which they argued that they should be entitled to withhold information on the functioning of the algorithms used to detect fraud, on the ground that such information was ‘trade secrets’ and could enable these processes to be circumvented. The Court ruled that the companies’ position on withholding information was disproportionate compared to the negative effects of unexplained automated dismissals and the disciplining of workers.
Jacob Turner advised Dr Anton Ekker of Ekker Legal on certain international and comparative law aspects. Dr Ekker acted for the App Drivers and Couriers Union, representing the drivers.
