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 others.
The IWUGB brought an application for judicial review on behalf of its members, who were predominantly lower-paid workers in the 'gig economy', including taxi, private hire, bus and coach drivers, who are at increased risk due to Covid and the case has a particular significance because of this. The union sought a declaration that the government had failed to properly implement two EU directives on health and safety at work and the provision of PPE ('personal protective equipment') as the UK legislation protected 'employees' rather than the broader category of 'workers'.
The Framework Directive (on health and safety at work) states that it protects employees and workers, and a 'worker' includes 'any person employed by an employer including trainees and apprentices (but not domestic servants)'. This Directive is the source of the protections in section 44 of the Employment Rights Act 1996 for employees who leave their workplace otr take action in circumstances of serious and imminent danger. The PPE Directive (introduced under the Framework Directive) is the source of the rules in Regulation 4(1) of the PPE at Work Regulations that an employer must provide PPE if the risks of an activity cannot otherwise be avoided.
The High Court considered other Directives and cases, and held that the definition of worker for the purposes of these Directives should be the same as used in other Directives on free movement, equal pay, and working time. On that basis, the legislation did not give the same level of protection to workers as employees, and the court granted a declaration to that effect. This is a significant judgment. While the government has the opportunity to appeal this decision, if it chooses not to it will have to introduce legislation to extend the scope of these protections to include the broader category of workers and that will have a significant impact for a large part of the workforce, especially in public or customer facing roles at the moment.
Thanks to James English of Ward Hadaway for preparing this case summary.