The Independent Workers Union (IWGB) of Great Britain has been successful in establishing a failure by the UK to transpose EU health and safety law obligations into domestic legislation. This means health and safety protections are now extended to hundreds of thousands of “gig economy” workers. This case has huge significance given the reliance placed on the “gig economy”.
The IWGB’s members are made up of predominantly low-paid, migrant and “gig economy” members. Between March and May 2020, they raised queries with the union regarding the working practices of their places of work. They complained about the lack of personal protective equipment (PPE), the failure to implement social distancing and failure to package samples safely. These complaints arose due to the outbreak of the COVID-19 pandemic.
The claim and finding
IWGB brought proceedings against the Secretaries of State for Work and Pensions, and for Business, Energy and Industrial Strategy in R (Independent Workers Union of Great Britain) v. Secretary of State for Work and Pensions and another for a declaration that the UK had failed properly to transpose European legislation into UK law to encourage the improvement of health and safety of workers and to set out minimum requirements on the use of PPE by workers.
IWGB argued that the UK legislation, principally in the Health and Safety at Work etc Act 1974 (HSWA) and the Employment Rights Act 1996 (ERA), had not gone far enough, by limiting protections to employees. As part of a Judicial Review, the High Court held that “workers” referred to in the applicable EU Directives includes any persons who fall within the autonomous EU case law definition of “worker” (with the express exception of domestic servants). This extends to those “limb (b) workers” in UK law, namely “dependent contractors” or “gig economy” workers.
The High Court held that workers should be afforded the same protection that employees receive under the ERA, i.e. to not suffer a detriment for leaving or refusing to return to the workplace in circumstances of serious and imminent danger, or for taking appropriate steps to protect themselves from danger. The current ERA provisions in this regard failed to implement the EU legislation properly.
The court also held that provisions of the HSWA failed properly to provide workers with the right to be provided with PPE by the businesses for which they worked.
The COVID-19 pandemic has brought these failures to light and highlighted their significance by leaving the most vulnerable exposed. The court found that the government must now take steps to ensure “gig economy” workers are given the same protection as employees. Whilst the government’s formal response to the decision is awaited, it would be prudent for businesses to extend the same health and safety protections to both employees and workers.