In a recent High Court decision, it was held that the United Kingdom had failed to properly implement EU law by restricting some health and safety protections in the workplace to employees only.
The Court held that the UK government had failed to provide many workers with the right not to be disadvantaged for taking steps in response to serious and imminent danger in the workplace, and did not adequately require businesses to provide workers with suitable personal protective equipment (“PPE”).
This case is particularly relevant given the growth of the ‘gig economy’, where individuals are frequently engaged under flexible, short-term contracts.
In R (on the application of the Independent Workers’ Union of Great Britain) v Secretary of State for Work and Pensions and another, the Independent Workers’ Union of Great Britain (“IWGB”) applied for a judicial review of the UK’s implementation of two EU Directives. The IWGB has approximately 5,000 members who are mainly workers in the gig economy, including couriers, taxi and private hire drivers and coach drivers. They received a large number of queries this year regarding COVID-19 issues, such as lack of PPE and failure to implement social distancing. This indicated that members were scared by having to work without relevant health and safety protection that they considered necessary to perform their role.
The IWGB’s central complaint was that two EU directives, one on the health and safety at work (EU Framework Directive (89/391/EEC)) and the other relating to the provision of PPE (EU PPE Directive (89/656/EEC)) required Member States to confer certain protections on ‘workers’, whereas the domestic UK legislation protected only ‘employees’. The IWGB argued that this meant that workers were not adequately protected and nor were their ‘employers’ required to provide PPE if the risk of an activity cannot be otherwise avoided. This gap in protection has existed ever since the deadline for transposing the Directives into domestic law in 1992, but the current pandemic has brought it in to the spotlight.
The High Court granted the IWGB a declaration to the effect that Section 44 of the Employment Rights Act 1996 (which protects employees from suffering any detriment as a result of acting or failing to act on a number of health and safety-related grounds) and Regulation 4 of the PPE at Work Regulations (whereby every employer shall ensure that suitable personal protective equipment is provided to employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective) failed to implement the respective EU directives correctly by not providing the same level of protection for workers as for employees.
The Government has the opportunity to appeal this decision, however, in the absence of a successful appeal, legislation will need to be introduced to extend the scope of the protections to include the broader category of ‘workers’.
What are the implications for employers?
Importantly, the judgment does not impose any direct obligations on businesses. It is solely concerned with whether the UK government had properly implemented the EU Directives. However, the extension of protection to the broader category of ‘workers’ potentially increases employers’ exposure to COVID-19-related health and safety claims.
The key takeaway points for employers to note include:
• That there may be an increased risk of litigation given the additional number of individuals who may now benefit from the enhanced health and safety protections. This will be a continuing issue for employers that engage independent contractors, given the increasing trend of such individuals challenging their employment status.
• Employers who have previously adopted a more relaxed approach, from a health and safety perspective, to the staff they classify as workers, should consider revisiting their workplace polices and review past practices.
• All employees and workers should be included in any consultation undertaken on a return to the physical workplace. This will reduce the risk of successful claims given the importance attached to an individual’s understanding of what health and safety measures have been implemented by the employer.
• It remains the case that only employees are protected from unfair dismissal – this right has not been extended to workers. However, in certain circumstances where a worker refuses to perform a service because of a reasonable belief that they are in serious and imminent danger, they may be able to bring a successful detriment claim against the employer where their contract is terminated under Section 44 of the ERA. This potentially brings many additional workers within the scope of these provisions, including those in public or customer-facing roles in the gig economy.
To discuss any questions arising from this alert or for specific legal advice on particular circumstances, please contact our Partner Beth Hale, who specialises in employment and partnership law issues for multinational employers, senior executives, partnerships and partners.