The government failed by limiting protection from detriment on health and safety grounds under section 44 of the Employment Rights Act 1996 (ERA) to employees and not extending the protection to workers.
In addition the UK government has also failed to properly implement Article 3 of the Personal Protective Equipment (PPE) Directive which requires the use of and supply of PPE to extend to workers and not just employees. The PPE Directive requires PPE to be used in certain circumstances when risks cannot be avoided by other means.
Legal background
Certain employment rights are limited to individuals who are categorised as an employee, for example unfair dismissal protection. However, some rights are provided to the wider category of worker. Workers are defined under section 230(3) of the ERA as "an individual who has entered into or works [or worked] under:- a contract of employment [Limb a]; or
- any other contract […] whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual." [Limb b].
Health and safety law
Section 44 of the ERA applies to health and safety cases and protects employees (not workers) against suffering a detriment by their employer:- in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work (section 44 (d) ERA); or
- in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger (Section 44(e) ERA).
It is also worth noting that section 100 of the ERA protects employees from unfair dismissal where either of the above circumstances are the reason or principal reason for dismissal. Only employees can bring a claim for unfair dismissal, this protection does not extend to workers.
Facts
The IWGB has about 5,000 members, who are predominantly low-paid, migrant workers and workers in the "gig economy". The workers whom the Claimant represents include taxi and private hire drivers, chauffeurs, bus and coach drivers and van drivers.
Between the beginning of March and 21 May 2020 the Claimant's legal department received around 144 queries regarding COVID-19 issues. The concerns varied from lack of PPE to failure to implement social distancing to failure to package COVID-19 samples correctly to protect medical couriers.
The IWGB believed the UK health and safety legislation left a gap in protection and did not adequately protect workers. The IWGB argued that although this gap in protection was not a new issue (the deadline for transposing the Directives was 31 December 1992), the pandemic gave the failing a particular salience and significance.
The IWGB brought a judicial review seeking a declaration that the UK had failed to properly transpose into domestic law:- Council Directive 89/391/EC on the introduction of measures to encourage improvements in the health and safety of workers at work (the Framework Directive); and
- Council Directive 89/656/EC on the minimum health and safety requirements for the use by workers of personal protective equipment at the workplace (the PPE Directive).
The IWGB argued that the Directives required the UK to extend certain protections to workers. The UK legislation (namely the Health and Safety at Work Act 1974 and the ERA) confines the protection to employees.
Decision
The High Court accepted the IWGB's argument that the Directives impose obligations to the wider group of workers and should not be limited to employees. Whilst dismissing the argument that protection should be limited to those with contracts of employment, the court concluded:
"The "workers" protected by the Directives include all who fall within the autonomous EU law definition applicable for the purposes of the treaty provisions on free movement and equal pay, with the exception of domestic servants. "Employers" are those for whom and under whose direction workers perform services and who have responsibility for the undertaking and/or establishment."
Comment
The decision confirms:- Workers must not suffer a detriment under section 44 of the ERA if they take steps to protect themselves by refusing to work when faced with serious and imminent danger.
- In certain circumstances workers are entitled to be provided with PPE.
This is a significant decision, even more so due to health and safety issues arising out of the ongoing pandemic. Subject to any appeal, the UK government will be expected to amend its domestic legislation to include the wider category of "worker". The Health and Safety Executive is due to make a formal response also.
In the meantime employers should be mindful that a change of UK legislation is extremely likely and should take steps to ensure workers are adequately protected now. Whilst we wait for the change of UK law, it is inevitable that workers will seek to argue that the current legislation should be interpreted in line with EU law.
We will continue to publish any updates on this.
If you need any assistance with the issues raised please do not hesitate to contact a member of the UK employment team.
