High Court confirms ‘workers’ as well as ‘employees’ entitled to protection
The Independent Workers' Union of Great Britain v The Secretary of State for Work & Pensions and others [13.11.20]
The High Court has handed down a landmark decision in the case of The Independent Workers' Union of Great Britain v The Secretary of State for Work & Pensions and others  confirming that ‘workers’ and not just ‘employees’ have the right to be provided with appropriate personal protective equipment (PPE) and to be protected from detriment on health and safety grounds.
The Independent Workers’ Union of Great Britain (IWUGB) are a trade union with approximately 5,000 members, made up of predominantly workers in the ‘gig economy’ acting as private hire vehicle drivers and couriers, many of whom have continued to provide essential services during the COVID-19 pandemic.
During the first two months of the UK’s first lockdown, the IWUGB received around 144 COVID-19 related questions from its members, who were concerned that they were at significant risk of contracting COVID-19 from their work, as a result of inadequate provision of PPE and failure to implement social distancing, amongst other issues.
Health and safety protections
The IWUGB brought an application for judicial review in the High Court seeking a declaration that the UK had failed to properly transpose two EU directives into domestic law, namely:
- The Council Directive 89/391/EC (the Framework Directive) on the introduction of measures to encourage improvements in workers' health and safety
- the Council Directive (89/656/EEC) (the PPE Directive) on the minimum health and safety requirements for use by workers of PPE in the workplace
The IWUGB argued that the directives required member states to confer health and safety protection on ‘workers’, whereas domestic legislation as implemented, only extended to provide protection to ‘employees’. This therefore created a gap in the health and safety protection afforded to its members, who fell outside the definition of an ‘employee’.
In response, the UK Government’s position was that the Framework Directive contained a bespoke definition of ‘worker’, extending to those who are ‘employed by an employer’, and that this concept was properly transposed into domestic law by imposing obligations to protect ‘employees’. Secondly, even if this was incorrect, the protections conferred by domestic law on workers who are not employees, including by way of Section 3 of the Health and Safety at Work etc. Act 1979 (HSWA) and Section 44(d) of the Employment Rights Act 1996, were sufficient to meet the minimum standards laid down by the directives.
The UK Government noted that Article 3 of the PPE Directive requires PPE to be used in certain circumstances, when risks cannot be avoided or sufficiently limited by other means, and was therefore a measure of last resort. Whilst Article 4(1) of the Personal Protective Equipment Regulations 2016 (PPE Regulations) imposes no duty in respect of workers who are not employees whilst at work, the obligations in Article 3 are given effect in relation to ‘limb b’ workers (i.e. those working under a contract - other than a contract of employment - where the person agrees to do the work personally, and the relationship between the parties to the contract is not akin to a client or customer of any profession or business relationship) by way of Section 2 and 3 of the HSWA, and in appropriate cases, Regulation 3(1) of the Control of Substances Hazardous to Health Regulations 2002 (COSHH Regulations).
The High Court found that the UK Government had failed to properly implement the two EU directives relating to health and safety at work which confer health and safety protections on employees and workers. The Court held that UK legislation only protects employees.
The Court held that the general health and safety obligations in Article 5 and 6 of the Framework Directive were properly implemented by Section 3 of the HSWA, which requires employers to conduct their undertaking so that other persons, including workers, are not exposed to risks to their health and safety. Further, the obligation to ensure workers could take appropriate steps to avoid danger were properly transposed through the Management of Health and Safety Regulations 1999.
However, the Court held that there were no equivalent domestic protections for workers not to be disadvantaged for taking steps in response to danger as afforded to employees under Section 44(d) of the Employment Rights Act 1996. Further, the Court held that there was a gap in protection afforded to workers under the PPE Regulations. This gap, whilst filled by other legislation in certain narrow circumstances, for instance the COSHH Regulations, in other cases, domestic legislation imposed no specific duty to provide PPE to ‘limb b’ workers in cases, where it was required. Therefore, the UK had failed to properly implement Article 3 of the PPE Directive as regards limb (b) workers.
Whilst the request for judicial review was founded upon the concerns raised by those working in the ‘gig economy’, the judgment extends the health and safety protection afforded to all workers.
It is possible that in the post-Brexit landscape, the UK Government could decide to amend the current law so as to exclude ‘workers’ from the protection afforded, albeit there has been no indication of this intention to date. Therefore, in light of this ruling and the increasing health and safety concerns over the COVID-19 pandemic, the judgment should serve as a useful reminder to review the measures in place, and whether any further steps can reasonably be taken to afford protection to those falling outside the definition of ‘employee’.
Read other items in Health, Safety and Environment Brief - March 2021