UK: Are Workers Protected After Refusing To Work Because Of Health And Safety Fears?

High Court: UK has failed to implement EU law protecting workers from detriment on health and safety grounds.

Refusing to work on health and safety grounds

Employees who act in the reasonable belief that they would be in serious and imminent danger at work are protected under UK law from suffering negative consequences or being dismissed because of that act. This applies when someone leaves work early, refuses to attend work, or when they take or propose to take appropriate steps to protect themselves or others.

This protection originally came from the EU Health and Safety Framework Directive (the Framework Directive) in 1992, which applied to "workers". The UK implemented this protection through Sections 44 and 100 of the Employment Rights Act 1996 (ERA 1996). However, the ERA 1996 limited these protections to employees rather than extending them to workers.

What is a worker?

The question of whether someone is an employee or a worker is a complicated one which has been the subject of many court and tribunal cases.  In general terms, in UK law employees work under a contract of employment (usually but not always in writing) and a mutual obligation where the employer will provide work which the employee must accept to do. Employees must perform the work personally, and are subject to a high level of control over how and when they perform the work and a high level of integration into the employer organisation.

Workers will usually be distinguished from employees by the fact that they have no guaranteed hours of work and can turn down work when it is offered. They will usually be subject to a lower level of control by and integration into the employer organisation. However, they must still perform the work personally and they are subordinate to their employer, having no bargaining power or client/contractor business relationship with them (as a self-employed person would).

There are a number of definitions of a "worker" under EU law depending on the rights and obligations in question. In general terms, a worker under EU law is someone who performs services for and under the direction of another person in return for wages.

Should workers be protected in the same way as employees if they refuse to work because of fears about their safety?

The High Court has recently determined that the UK failed properly to implement the protection against detriment under the Framework Directive by failing to apply it to workers who do not work under a contract of employment.

The High Court also decided that the UK had failed properly to implement the EU Personal Protective Equipment (PPE) Directive by not extending its protection to workers. The PPE Directive sets out minimum requirements for PPE used by workers at work and requires PPE to be used in certain circumstances when risks cannot be avoided by other means.

Case details: R (Independent Workers' Union of Great Britain) v Secretary of State for Work and Pensions

The Independent Worker's Union of Great Britain (IWUGB) union represents gig-economy workers including couriers, private hire and van drivers. During the first wave of the Covid-19 pandemic, many of its members sought advice on concerns about their safety at work, including a lack of PPE and a failure to enforce social distancing at work. Couriers engaged to deliver Covid-19 tests as part of the testing regime expressed concerns about inadequate packaging of contaminated samples.

The IWUGB brought proceedings in the High Court seeking a declaration that the UK had failed to implement the Framework Directive and the PPE Directive because the protections set out in UK law were limited to employees. The High Court agreed and made a declaration to that effect.

Comment

This decision is very important as it extends to workers protection from detriment for refusing to work or taking other steps to protect health and safety. This will apply to those on zero hours contracts, to bank workers and casual workers. This decision may give rise to claims, for example where workers have suffered reduced pay due to a refusal to work because of a reasonable belief that they are in danger when working. Workers (along with employees) will also be entitled to be provided with PPE where this is necessary to mitigate risks.

However, this does not extend protection to those who are genuinely self-employed, that is those who are in business on their own account and who have a client/contractor relationship with the contracting organisation. Of course, the line between worker status and self-employed status will continue to be the subject of legal battles to secure rights for individuals.

Workers' rights include statutory minimum paid holiday, statutory sick pay (if eligible), National Minimum Wage and protection against discrimination. This decision may well increase the number of individuals who bring claims on the basis that they are in fact workers, despite being nominally self-employed.

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