How did this case arise?

The Independent Workers’ Union of Great Britain (IWGB) has around 5,000 members who are mainly lower-paid workers, including many working in the “gig economy”. Between March 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 they considered they needed.

The IWGB brought an application for judicial review in the High Court (HC), seeking a declaration that the UK had failed properly to implement into national law two EU Directives dating back to 1989:

• The “Framework Directive” (so-called), on the introduction of measures to encourage improvements in the health and safety of workers.
• The PPE Directive, on minimum health and safety requirements for use by workers of PPE in the workplace.

The union’s central complaint was that that both 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:

• Section 44 of the Employment Rights Act 1996 (ERA) which provides, among other things, that all employees have a right not to be subjected to any detriment for leaving or refusing to come to work in circumstances where they have a reasonable belief they are in “serious and imminent danger”. (Our article Coronavirus: staffing decisions when reopening workplaces discusses the application of this provision in the context of the current pandemic.)
• Regulation 4 of the Personal Protective Equipment at Work Regulations 1992, which requires an employer to ensure that suitable PPE is provided to its employees who may be exposed to a risk to their health or safety while at work, except where such risk is adequately controlled by other effective means.

What did the High Court decide?

The HC 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 Framework Directive defined “worker” as “any person employed by an employer, including trainees and apprentices (but not domestic servants)”, and “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 HC 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 Framework Directive, the HC 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 HC concluded section 44 of the ERA and regulation 4 of the PPE Regulations failed to implement the respective directives correctly by not providing the same level of protection for workers as for employees. It granted the IWGB a declaration to that effect.

What implications will this ruling have?

This is a significant decision because it potentially gives workers as well as employees protection 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 sanction 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 working in the gig economy.

The UK’s Health and Safety at Work Act 1974 sets out the health and safety duties that an employer owes to its 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. There may be situations, however, where an employer chooses 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 courts finding that existing legislation should be extended to workers in order to comply with EU law – such as the Employment Tribunal (ET) decision around a year ago that workers as well as employees 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 HC’s declaration means that the government should amend the wording of the legislation in order to comply with EU law. In the meantime, ETs and 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 UK’s impending final exit from the EU at the end of the Brexit transition period on 31 December 2020 is likely to 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 ETs must continue to interpret UK legislation in accordance with the wording and purpose of the health and safety directives referred to above, and so could still interpret section 44 of the ERA as covering workers. The government could, however, take steps to change the law post-Brexit expressly to exclude workers - which makes it unlikely the legislation will be amended to comply with this ruling in the meantime.

R (on the application of the IWGB) v Secretary of State for Work and Pensions and others – judgment available here