We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.
02 December 2020
The High Court recently ruled that the United Kingdom has failed to properly implement EU health and safety law by restricting protection from detriment on health and safety grounds to 'employees'.(1) The extension of such protection to the broader category of 'workers' potentially increases employers' exposure to COVID-19-related health and safety claims.
The Independent Workers' Union of Great Britain (IWGB) has approximately 5,000 members who are mainly lower-paid workers, including many working in the gig economy. Between March 2020 and May 2020, the union's legal department received a large number of queries regarding COVID-19 issues, such as a lack of personal protective equipment (PPE) and failure to implement social distancing, which indicated that members were scared by having to work without the health and safety protection that they considered they needed.
The IWGB brought an application for judicial review in the High Court, seeking a declaration that the United Kingdom had failed properly to implement into national law two EU directives dating back to 1989 – namely:
The union's central complaint was that that both of these directives require EU member states to confer protections on 'workers', whereas the implementing UK legislation covers only 'employees'. While this alleged gap in protection had existed since the directives were transposed into UK law in the 1990s, the IWGB claimed that the COVID-19 pandemic had given it particular significance.
The main UK legislation at issue was specifically the following:
The High Court upheld the IWGB's contention that both directives, by referring to protection of 'workers', impose obligations in relation to a wider category than just 'employees'. The EU Framework Directive defined a 'worker' as "any person employed by an employer, including trainees and apprentices (but not domestic servants)" and an 'employer' as "any natural or legal person who has an employment relationship with the worker and has responsibility for the undertaking and/or establishment".
The High Court also noted that EU case law had established a specific meaning of 'worker' for areas including equal pay and free movement, which covers any person who performs services for and under the direction of another person in return for remuneration. While this was not the same as the definition in the EU Framework Directive, the High Court decided there was no indication that any significant difference in meaning was intended. Accordingly, 'worker' should be taken as falling within the general EU law definition.
Based on this approach, the High Court concluded that Section 44 of the ERA and Regulation 4 of the PPE at Work Regulations failed to implement the respective EU directives correctly by not providing the same level of protection for workers as for employees. It granted the IWGB a declaration to that effect.
This is a significant decision because it potentially protects workers as well as employees from detriment on health and safety grounds, including where they leave work or refuse to come into work due to a reasonable belief in serious and imminent danger.
This type of claim under Section 44 of the ERA is one of the most likely to arise during the COVID-19 pandemic. Although workers cannot claim unfair dismissal, they can make a detriment claim if they are subjected to a penalty for leaving work in these circumstances, which would include terminating their contract. This potentially brings many additional workers within the scope of these provisions, including those in public or customer-facing roles in the gig economy.
The United Kingdom's Health and Safety at Work Act 1974 sets out the health and safety duties that employers owe to their employees which, for the most part, do not extend to workers. Clearly there is a tension between that approach and this decision, although many employers will choose to treat individuals who work alongside each other in the same way, irrespective of their contractual status. However, there may be situations where employers choose to treat workers differently in order to avoid an argument that they are really an employee – for example, by requiring workers to provide their own PPE or by not providing homeworking risk assessments.
This decision could be seen as part of a recent trend of the courts finding that existing legislation should be extended to workers in order to comply with EU law – such as the 2019 employment tribunal decision that workers as well as employees transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) (for further details please see "Tribunal finds that workers transfer under TUPE").
The government has the opportunity to appeal this decision and it has been reported that a government spokesperson has said that it acknowledges the judgment and "will set out our formal response shortly". If the government chooses not to appeal, the High Court's declaration means that the government should amend the wording of the legislation in order to comply with EU law. In the meantime, employment tribunals and the courts may be asked to interpret Section 44 of the ERA as covering workers, although this may be difficult to do as the wording of the legislation is clearly limited to employees.
The United Kingdom's impending final exit from the European Union at the end of the Brexit transition period on 31 December 2020 will likely affect what happens as a result of this decision. The EU Withdrawal Act provides that any UK law passed or made before the end of the transition period must still be interpreted, as far as possible, in accordance with EU law. This means that the courts and employment tribunals must continue to interpret UK legislation in accordance with the wording and purpose of the EU health and safety directives referred to above, and so could still interpret Section 44 of the ERA as covering workers. However, the government could take steps to change the law post-Brexit expressly to exclude workers – which makes it unlikely that the legislation will be amended to comply with this ruling in the meantime.
For further information on this topic please contact Shalina Crossley at Lewis Silkin by telephone (+44 20 7074 8000) or email (email@example.com). The Lewis Silkin website can be accessed at www.lewissilkin.com.
(1) R (on the application of the IWGB) v Secretary of State for Work and Pensions and others – judgment available here.
(2) For further information please see "Coronavirus – FAQs on staffing decisions when reopening workplaces", which discusses the application of this provision in the context of the COVID-19 pandemic.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.