European Union: Protection From Detriment On Health And Safety Grounds Extended To ‘Workers'

In R (on the application of the Independent Workers' Union of Great Britain) v Secretary of State for Work and Pensions and anor, the High Court has ruled that protection from detriment on health and safety grounds should extend to 'workers' under EU law.

The Court held that the UK had not properly implemented the EU Health and Safety Framework Directive (No.89/391) in that it had limited protection from detriment on health and safety grounds to 'employees'. The Directive requires protection to extend to anyone who falls within the autonomous meaning of 'worker' specific to EU law, which covers any person who performs services for and under the direction of another person in return for remuneration.

From the beginning of March to 21 May 2020, the Independent Workers' Union of Great Britain's ('IWGB') legal department received around 144 COVID-19-related enquiries. The subjects of these enquiries included a lack of personal protective equipment (PPE), a failure to implement social distancing and a failure to package COVID-19 samples correctly to protect medical couriers. There was evidence that some of the IWGB union's 5,000 members, who are predominantly low-paid, migrant workers and gig economy workers (independent contractors, online platform workers, contract firm workers, on-call workers and temporary workers who enter into formal agreements with on-demand companies to provide services to their clients), were worried about having to work without PPE. The IWGB believed that UK employment and health and safety law did not sufficiently protect 'workers' (i.e. those who work under a common law contract of employment). It brought High Court proceedings arguing that 'the Framework Directive' on the introduction of measures to encourage improvements in the health and safety of workers at work and the 'the PPE Directive' on the minimum health and safety requirements for the use by workers of personal protective equipment at the workplace (together the 'Directives') require Member States to bestow certain protections on 'workers' but UK domestic legislation (mainly contained in the Health and Safety at Work etc Act 1974 (HSWA) and the Employment Rights Act 1996 (ERA)) limits protection to 'employees'.

The Court accepted that the Directives, which refer to the protection of 'workers', impose obligations regarding a wider class of individual than just 'employees'. EU case law in areas such as free movement and equal pay has established an autonomous meaning of 'worker' specific to EU law, which refers to a person who performs services for and under the direction of another person in return for remuneration. The Court concluded that 'worker' includes anyone who would fall within this definition.

The Court then considered various provisions of UK domestic law said to implement the protections demanded by the Directives. These included Section 44 of the ERA, which provides that it is unlawful to subject an employee to detriment for leaving or refusing to return to the workplace in circumstances of serious and imminent danger or for taking appropriate steps to protect him or himself or other persons from the danger. The Court held that restricting such rights to 'employees' only, failed to effectively implement the requirement in Article 8(4) and (5) of the Framework Directive that workers who take the appropriate steps in response to serious and imminent danger are not to be disadvantaged for doing so unless they act carelessly or negligently. The Court also held that various provisions of the HSWA and related secondary legislation do not properly implement Article 3 of the PPE Directive, which requires PPE to be used in certain circumstances when risks cannot be avoided another way.

The outcome of this case means that 'workers', in addition to 'employees', will be able to bring claims in an employment tribunal if they suffer detrimental treatment in health and safety cases. Section 44 of the Employment Rights Act 1996 now provides both employees and workers with the right not to be treated detrimentally for raising health and safety concerns. It also permits them to leave or refuse to return to an unsafe workplace (or to take appropriate steps to protect themselves and others) where they reasonably believe they are in serious and imminent danger. Consequently, workers, as well as employees, will be able to contest the adequacy and suitability of safety arrangements at work.

The ruling in this case extends health and safety protection to hundreds of thousands of workers, including those in the gig economy, which is significant in the current COVID-19 pandemic.

The pandemic has highlighted the importance of these protections and there is now an increased probability of these kinds of claims. Organisations therefore need to take care when dealing with staff who have raised concerns or acted on health and safety grounds.

Where businesses do treat employees or workers detrimentally, no cap on compensation and possibly injury to feelings awards on top should be expected.

Originally Published by Blaser Mills, February 2021

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