Case update (4):  Workers protected in the same way as employees from being subject to detriments on both Health and Safety grounds and the right to be provided with PPE

Summary:  Should workers have protection from being subjected to detriments on health and safety grounds, and the right to be provided with PPE, in the same way as employees?

Yes, held the High Court in The Independent Workers’ Union of Great Britain v The Secretary of State for Work & Pensions and another (available here).

Background:  The Independent Workers’ Union of Great Britain (‘IWGB’) members are made up of predominantly low-paid, migrant and “gig economy” members. Between March and May 2020, members raised queries with the union regarding the working practices of their places of work. They complained about the lack of personal protective equipment (PPE), the failure to implement social distancing, and failure to package samples safely. These complaints arose due to the outbreak of the COVID-19 pandemic.

Facts:  The IWGB brought proceedings against the Secretary of State for Work and Pensions, and the Department for Business, Energy and Industrial Strategy.  They sought a declaration from those organisations that the UK had failed properly to transpose EU law into UK law to encourage the improvement of health and safety of workers and to set out minimum requirements on the use of PPE by workers.  IWGB argued that the UK legislation, principally in the Health and Safety at Work etc Act 1974 (HSWA) and the Employment Rights Act 1996 (ERA), had not gone far enough by only providing protection for employees.

As part of a Judicial Review, the High Court held that “workers” should comply with the EU definition, which covers any person who performs services for and under the direction of another person in return for remuneration. This extends in the UK to “dependent contractors” or “gig economy” workers.

The High Court agreed that the current UK law failed to implement the EU law properly and held that workers should be afforded the same protection that employees receive under the ERA i.e. to not suffer a detriment for leaving or refusing to return to the workplace in circumstances of serious and imminent danger, or for taking appropriate steps to protect themselves from danger.

The High Court also held that provisions of the HSWA failed properly to provide workers with the right to be provided with PPE by the organisations for which they worked.

Implications:  This is a significant decision because it potentially protects many workers, including from the more vulnerable “gig economy”, from detriment on health and safety grounds.  This includes where workers leave work or refuse to come into work due to a reasonable belief in serious and imminent danger.  The decision fits within the recent trend of courts extending legislation to give protection to workers, including the Tribunal’s recent decision that TUPE protects workers in addition to employees.

The Government may appeal the decision.  However, if it does not, the relevant legislation will need to be amended in accordance with EU law as soon as possible. In the meantime, any law made before the Brexit transition period ends on 31 December 2020 must still be interpreted, as far as possible, in accordance with EU law. Therefore currently Tribunals and the courts may be asked to interpret UK law as covering workers (although this may be difficult to do as the wording of the legislation is clearly limited to employees).  After 31 December, the Government could expressly preclude workers from the protections identified above in UK law. However, this seems unlikely in practice given the general expansion of workers’ rights, which the Government has helped to develop.