In a landmark decision, R (Independent Workers’ Union of Great Britain) v Secretary of State for Work and Pensions and another  EWHC 3050 (13 November 2020), the High Court (Chamberlain J) has held that workers are now entitled to the same protection as employees against suffering detriment if they take steps to protect themselves by refusing to work when faced with the serious and imminent danger of being exposed to COVID-19. They are also entitled to be provided with the necessary PPE, if the circumstances require.
The Court decided that the UK government failed to properly implement into UK law Article 8(4) and (5) of the EU Health and Safety Framework Directive (89/391/EC) by limiting protection from detriment on health and safety grounds under section 44 of the Employment Rights Act 1996 (ERA 1996) to employees and therefore excluding workers.
The Directive requires protection to extend to all those who fall within the meaning of “worker” under EU law, which covers any person who performs services for and under the direction of another person in return for remuneration. Therefore, the protection must also extend to “workers” as defined in section 230(3)(b) of the ERA 1996.
The court also found that the UK had failed to properly transpose the EU Directive on the minimum health and safety requirements for the use by workers of personal protective equipment (PPE) at the workplace (89/656/EC) by limiting employers’ obligations to provide any necessary PPE only to employees.
The Independent Worker’s Union of Great Britain (IWGB) union represents about 5,000 members who are predominantly gig-economy workers such as couriers and private hire and van drivers. Between the beginning of March and 21 May 2020, the IWGB’s legal department received around 144 queries regarding COVID-19 issues, including lack of PPE, failure to implement social distancing and failure to package COVID-19 samples correctly to protect medical couriers. There was evidence that some of the IWGB’s members were scared by having to work without the PPE they considered that they required.
The IWGB considered that UK employment and health and safety law does not adequately protect workers against health and safety risks in contrast to the protection available to employees. The IWGB brought High Court proceedings against the Secretaries of State responsible for domestic legislation on health and safety at work seeking a declaration that the UK has failed to properly transpose into domestic law the Framework Directive and the PPE Directive. It argued that the Directives require member states to confer certain protections on “workers”, whereas UK domestic legislation confines protection to “employees”.
The UK government argued that the bespoke definitions in the Framework Directive ensure that duties are to be imposed on employers only in respect of workers “employed” by them and only when they have responsibility for the undertaking in question. The words “employed by” in the Framework Directive connote employment under a contract of employment and do not include the domestic “worker” category.
R (Independent Workers’ Union of Great Britain) v Secretary of State for Work and Pensions and another  EWHC 3050 (Admin) (13 November 2020)