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13 November, 2020 Open access

High Court rules that UK Government has failed to properly apply provisions within EU health and safety directives to ‘gig economy’ workers

The Independent Workers' Union of Great Britain, R (on the application of) v The Secretary of State for Work and Pensions & Ors [2020] EWHC 3050 (Admin)

In a new judgment, the High Court has ruled that the UK Government has failed to properly apply provisions within two EU health and safety directives to 'gig economy' workers.

In The Independent Workers' Union of Great Britain, R (on the application of) v The Secretary of State for Work and Pensions & Ors [2020] EWHC 3050 (Admin) (13 November 2020), the Independent Workers' Union of Great Britain - which has about 5,000 members who are predominantly low-paid, migrant workers and workers in the gig economy - sought declarations that the UK has failed properly to implement in its domestic law certain provisions of two EU health and safety directives -

The Union’s central complaint was that the Directives require Member States to confer certain protections on 'workers', whereas the domestic legislation protects only 'employees'. Many of the Union’s members are not employees (as that term is understood in domestic law), but 'limb (b) workers' (i.e. those falling within section 230(3)(b) of the Employment Rights Act 1996).

The Union submitted that, in light of the coronavirus (COVID-19) pandemic, many of its members have particular needs for the kinds of health and safety measures the Directives require. This was evidenced by the fact that, between the beginning of March and 21 May 2020, the Union's legal department received around 144 queries regarding COVID-19 issues, and its Couriers and Logistics Branch received more than 50 requests for assistance that raised issues such as the lack of PPE (many couriers working for delivery companies have not been provided with any), the failure to implement social distancing whilst waiting for collections inside and outside restaurants, and the failure to package COVID-19 samples correctly so as to protect medical couriers.

There was also evidence that some of the Union's members were scared by having to work without the PPE they considered necessary.

  * * * * *

Having carried out a careful analysis of relevant EU and domestic legislation and case law, Mr Justice Chamberlain agrees with the Claimant that the term 'worker', as defined and used in the Directives, includes those who are limb (b) workers as a matter of UK law.

However, while Mr Justice Chamberlain finds that the general obligations in Article 5(1) and 6(1) of the Framework Directive were properly implemented as regards limb (b) workers by section 3 of the Health and Safety at Work Act 1974, taken together with other more specific domestic legislation, he also finds that -

As a result of these conclusions, Mr Justice Chamberlain allows the Union's claim in part, and makes the following declaration -

'The UK Government has failed properly to implement in UK law:

(a) Article 8(4) and the second paragraph of Article 8(5) of Council Directive 89/391/EC on the introduction of measures to encourage improvements in the health and safety of workers at work (the Framework Directive); and

(b) Article 3 of Council Directive 89/656/EC on the introduction of minimum health and safety requirements for use by workers of personal protective equipment at the workplace (the PPE Directive)

by reason that in UK law those obligations have not been extended to workers as defined in section 230(3)(b) of the Employment Rights Act 1996, whereas the definition of 'worker' in Article 3 of the Framework Directive (which also applies to the PPE Directive) includes such workers.' (paragraph 143)

NB - commenting on the High Court's decision, Henry Chango, General Secretary of the Independent Workers' Union of Great Britain, said today -

'We are delighted with this win for workers’ rights. In the midst of the pandemic, health and safety at work has never been more important. It is crucial that businesses know they must protect the health and safety of their workers and that the Government brings the criminal prosecutions necessary to enforce this law.'