Employment and Immigration Update - Health and safety protection for workers


27 November 2020

The High Court has ruled in a judicial review application on the question of whether the UK has properly implemented the EU Health and Safety Framework Directive (89/391) and the Personal Protective Equipment Directive (89/656/EC), in protecting only ‘employees’ rather than ‘workers’.

R (on the application of the Independent Workers’ Union of Great Britain) v Secretary of State for Work and Pensions and anor [2020] EWHC 3050 (Admin)

Facts

The Independent Worker’s Union of Great Britain (IWGB) represents many workers in the ‘gig economy’, including couriers and drivers. Earlier this year the union received a high number of queries relating to COVID-19 issues, including reports of employers failing to provide PPE.

The IWGB brought High Court proceedings on the basis that it did not consider UK health and safety legislation to adequately protect workers against health and safety risks, since it only applies to ‘employees’ and not ‘workers’. It sought a declaration from the court that the UK had failed to properly implement the applicable European Directives into domestic law.

High Court decision

The High Court upheld the claim, finding that the UK has failed to properly implement the EU Health and Safety Framework Directive (89/391/EC) and the Personal Protective Equipment Directive (89/656/EC). The court accepted the IWGB’s argument that the reference in the directives to ‘workers’ imposed obligations to protect a much broader category of individuals than just ‘employees’.

Consequences

This decision has significant consequences for both employers and many frontline workers who have not been given adequate protection during the COVID-19 pandemic, but will of course apply to other health and safety considerations beyond the current situation. It means that workers will be protected from any detriment for leaving or refusing to return to a workplace in circumstances of serious and imminent danger, or for taking appropriate steps to protect themselves or others from the danger. Subject to any appeal, the Government will now be under pressure to take action to amend the existing legislation. The Health and Safety Executive’s response to the decision has not yet been issued.

These articles are from the November 2020 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts' Employment Law Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at November 2020.