285: Health and safety protections extended to ‘workers’

The Independent Workers’ Union of Great Britain (IWGB) has succeeded in obtaining a High Court declaration that the UK failed to properly implement two EU health and safety directives by restricting certain health and safety protections to employees rather than extending them to the broader category of workers.

The IWGB represents about 5,000 members, including many gig-economy workers such as couriers and private hire and van drivers. During the first national lockdown between March and May 2020, the IWGB’s legal department received 144 queries about health and safety, such as a lack of PPE, failure to implement social distancing and failure to package COVID-19 samples correctly to protect medical couriers.

Against this background, the IWGB applied for judicial review in the High Court seeking a declaration that the UK had failed to properly implement into UK law two EU health and safety directives dating back to 1989: the ‘Framework Directive’ on health and safety measures in the workplace and the PPE Directive on minimum health and safety requirements for PPE. In particular, the Employment Rights Act 1996 provides that only employees have a right not to be subjected to any detriment for leaving or refusing to come to work where they have a reasonable belief that they are in serious and imminent danger (section 44); and the PPE Regulations require an employer to ensure that suitable PPE is provided only to employees who may be exposed to a health and safety risk (regulation 4). The IWGB argued that each Directive requires EU states to protect ‘workers’, not just employees, in these situations.

The High Court reviewed the law on the meaning of ‘worker’ and concluded that the IWGB’s argument was correct. EU case law has established that a ‘worker’ is any person who performs services for and under the direction of another person in return for remuneration. The reference to protecting ‘workers’ in the Directives therefore imposes obligations in relation to a wider class of individual than just ‘employees’. The High Court dismissed the government’s argument that workers have sufficient protection because they have the right not to suffer detriment for whistleblowing about health and safety concerns.

Subject to any appeal, this is a significant judgment which means that the government will need to amend domestic legislation to extend these health and safety protections to all workers. However, the effect of Brexit remains unclear, and we will need to await the government’s formal response. In the meantime, given the pandemic, all employers should be reviewing the extent of their PPE provision and how they treat workers who refuse to work due to health and safety concerns. It is important to note that regardless of this case, workers can bring a whistleblowing claim if they are subjected to a detriment as a result of raising health and safety concerns, and that compensation for whistleblowing is uncapped.