Navigating the legal grey zone of platform work in Kenya

A food courier weaving through Nairobi’s traffic with a Glovo delivery. A ride-hailing driver juggling apps: Uber in the morning, Bolt by afternoon. A digital content moderator reviewing flagged social media posts from an office in Westlands, on behalf of a global tech company. These are the faces of a growing and increasingly indispensable workforce: Kenya’s platform workers.

Platform work, which is labour performed through digital platforms and managed via apps, dashboards, and algorithms, is a new form of work that has rapidly gained traction in many jurisdictions, including Kenya. While it spans diverse fields including delivery, transportation, microtasks, freelancing and digital content moderation, what unites these roles is the structure of work: flexible, tech-mediated, and often outside the bounds of conventional employment. As a result, many platform workers are not entitled to statutory labour law protections such as minimum wage, paid leave, social security, or the right to unionise, since they are typically classified as independent contractors rather than employees.

Unlike conventional employees, platform workers generally choose when to log on, what tasks to accept, and whether to work at all. Many appreciate this freedom. A driver can pause midday, toggle between apps, or work weekends only. Such flexibility is unheard of in conventional employment relationships. For many Kenyans, especially the youth, platform work offers a vital income stream in a tough job market.

Yet, behind this flexibility lies a more complex story. Platform workers are typically engaged as independent contractors. But while there is no human supervisor on duty, algorithms monitor punctuality, customer ratings, completion rates, time spent per task and remuneration. Automated decisions can limit task allocations or even result in account deactivation or other sanctions. For workers, this algorithmic management may feel just as binding as a supervisor’s instructions. 

This raises a key question: if a worker’s schedule is flexible, but their earnings and access to work are subject to algorithmic control akin to an employment relationship, how should the law regulate that relationship?

Kenya’s courts are now beginning to engage with these complexities. In the case of Samasource EPZ Ltd v Meta Platforms & Others (2024), the Employment and Labour Relations Court initially found that content moderators engaged through a third-party contractor could be deemed employees of both the local vendor and Meta, owing to the significant control exercised by the platform. Although the Court of Appeal later set aside those findings at the interlocutory stage, the main dispute remains pending at the Labour Court in this case that has the potential for shaping  jurisprudence in digital labour. 

One of the most influential decisions globally is Uber v Aslam and Others (2021), in which the United Kingdom’s Supreme Court affirmed that Uber drivers, despite being labelled as independent contractors, qualified as “workers” entitled to minimum wage and paid leave, among other benefits. In UK law, the category of “worker” represents an intermediate status, distinct from both employees and independent contractors but offering certain core protections without full employment entitlements. This “worker” category does not currently exist in Kenyan law, where the legal framework primarily recognises only employees and independent contractors. The UK Supreme Court looked past contractual labels and focused on the practical dynamics: who controlled the terms, the pricing, and the flow of work. It recognised that algorithmic and structural control can create a relationship of subordination that merits legal protection, even if traditional hallmarks of employment are absent.

In contrast, South Africa’s courts in the case of  Uber South Africa Technology Services (Pty) Ltd v National Union of Public Service and Allied Workers (NUPSAW), (2018) held that Uber drivers are independent contractors, overturning an earlier decision by the Commission of Conciliation, Mediation and Arbitration’s which had classified the drivers as employees. 

In the United States, legal treatment varies by state. California’s ABC test which was influenced by the decision in the case of Dynamex Operations West, Inc. v. Superior Court (2018) created a strong presumption of employment for platform workers, but it faced backlash and was partially rolled back via Proposition 22, resulting in a “third status” that offers partial protections to platform workers without full employment rights.

Meanwhile, the European Union is moving in a different direction. Rather than classifying all platform workers as employees, the EU Platform Work Directive (2024) work introduces a rebuttable presumption of employment of platform workers based on indicators of control, such as fixed remuneration, task exclusivity or monitoring. It places the burden on platforms to rebut that presumption, and mandates transparency in algorithmic management, empowering workers to understand how decisions affecting their work are made.

 At the international stage, the International Labour Organization (ILO) is on a pathway towards creating a new international labour standard to support decent work in the platform economy. The proposal for the new standard will be discussed at the ILO’s 2025 and 2026 International Labour Conferences.

These developments point to a broader trend: a recognition that platform work may not fit neatly into the binary of employee versus contractor. 

As Kenya positions itself as a digital innovation hub and as platform work becomes more entrenched in our economies it is worth asking: Are our current legal frameworks equipped to deal with this shift? Do they reflect the lived reality of a Glovo rider in Kilimani, or a content moderator in Nairobi’s tech corridors?

These are not questions with simple answers. But they are questions we must begin to ask.

Platform work is not just a technological shift, but it is a legal and policy challenge. How we respond will shape not only the livelihoods of thousands of Kenyan workers today but also the future of work in our region.

Irene Kashindi, FCIArb is an advocate of the High Court of Kenya and PhD student researching on platform work