In a judgment handed down on 13 November 2020, the High Court held that the UK government failed to provide workers with the right not to be disadvantaged for taking steps in response to serious and imminent danger and did not require employers to provide workers with suitable personal protective equipment.
The Independent Workers’ Union of Great Britain (IWGB) was partly successful in its judicial review against the two secretaries of state responsible for health and safety legislation in the United Kingdom (the secretaries of state for Work and Pensions and for Business, Energy and Industrial Strategy). IWGB had sought a declaration that the United Kingdom had failed to adequately transpose certain provisions of both Council Directive 89/391/EC (the Framework Directive) and Council Directive 89/656/EC (the PPE Directive) into UK law. The High Court held that the UK government did not provide workers with the right not to be disadvantaged for taking steps in response to serious and imminent danger, nor did it provide employers with obligations to provide workers with suitable PPE.
A myriad of different working models have developed over the course of the last decade and many high-profile cases have brought the associated issue of employment status to the attention of companies and individuals. The growth of the “gig economy” in particular, where individuals are engaged on flexible, short-term contracts, has catalysed this dynamic, and has also led to the launch of various investigations (for example, the Taylor Review) into whether the United Kingdom’s employment law framework remains fit for purpose.
The crux of the issue regarding employment status is that many organisations have purportedly engaged personnel as independent contractors. Increasingly, however, those independent contractors are claiming that they have been classified incorrectly and assert that, in reality, they are “limb (b) workers” (or even employees in some limited cases). This is a significant risk for employers. A finding that an individual supposedly engaged as an independent contractor is in fact a limb (b) worker would entitle that individual to a number of employment rights, including paid holiday and the national minimum wage.
The case above is therefore a hugely important development in this area. Limb (b) workers, in addition to employees, will now benefit from the rights (1) not to suffer detriment for taking certain steps on health and safety grounds and (2) to receive suitable personal protective equipment (PPE). The risk of incorrectly classifying staff has increased as a result.
WHO ARE ‘LIMB (B) WORKERS’?
“Limb (b) workers” are workers who do not work under an employment contract but work under any other contract whereby they undertake to personally perform work or services for the other party to the contract (the definition is found in Section 230(b) of the Employment Rights Act 1996 (ERA), hence the “limb b” label). The distinction between limb (b) workers and employees is the existence of a contract of employment between the two parties to the relevant contract.
Conversely, there is no set definition of a worker in EU law. Instead, the definition depends on the area in which the definition needs to be applied. The Framework Directive defines “worker” as “any person employed by an employer, including trainees and apprentices but excluding domestic servants.” “Employer” is defined as “any natural or legal person who has an employment relationship with the worker and has responsibility for the undertaking and/or establishment.”
FRAMEWORK DIRECTIVE AND PPE DIRECTIVE COVER WORKERS, NOT JUST EMPLOYEES
The UK government’s position was that the definition of a “worker” in the Framework Directive is a bespoke definition that extends only to those who are “employed by an employer,” and that this is properly transposed into domestic law by virtue of an employer’s obligations to protect “employees.” However, the High Court held that the words “employer,” “employed,” and “employment relationship” in those definitions are neutral in the sense that they can be equally used to describe a relationship between a worker and the person for whom and under whose direction he or she performs services.
The High Court therefore upheld IWGB’s argument that the directives impose obligations on employers in relation to a wider category of persons than just employees.
UK LAW OFFERS INSUFFICIENT PROTECTION TO WORKERS
The provisions that IWGB argued had not been properly implemented in domestic law with respect to “limb (b) workers” were
- the general obligations in Articles 5(1) and 6(1) of the Framework Directive;
- Article 8(4) and (5) of the Framework Directive; and
- Article 3 of the PPE Directive.
The UK government had argued that in the event the two directives were held to apply to limb (b) workers in addition to employees, the protections afforded to workers by domestic legislation were sufficient in any event to meet the minimum standards set out in the directives. The High Court agreed with the government that the protections conferred by domestic law on limb (b) workers by Articles 5(1) and 6(1) of the Framework Directive were sufficient in this respect. The general obligations were properly implemented in respect of workers by the equally broad scope of Section 3 of the Health and Safety at Work Act 1974.
The main area of focus was therefore on Articles 8(4) and (5) of the Framework Directive, and Article 3 of the PPE Directive.
Article 8(4) and (5) of the Framework Directive
Article 8(4), and the second paragraph of Article 8(5), can be summarised as a requirement that workers who take the appropriate steps in response to serious and imminent danger are not to be disadvantaged for doing so, unless they act carelessly or negligently. This requirement is properly transposed in relation to employees by Section 44 of ERA.
It was argued by the defendants that Section 47B of ERA implements the same requirements in relation to limb (b) workers. Section 47B(1) of ERA provides that a worker has the right “not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”
It was held, however, that limb (b) workers who take the steps envisaged by Article 8(4) and (5) may or may not make a protected disclosure and would not be protected by Section 44 of ERA if they had not done so. Section 47B of ERA provides workers with protection on the basis of what they have said, not on the basis of what they have done. Consequently, the UK government was found to have failed to properly implement this aspect of the Framework Directive.
Article 3 of the PPE Directive
Article 3 of the PPE Directive requires PPE to be used in certain circumstances: when risks cannot be avoided or sufficiently limited by technical means of collective protection open measures, methods, or procedures of work organisation. Except in certain limited circumstances, UK law does not impose any duty on employers to prove PPE to limb (b) workers in cases where it must do so for employees.
It was held that an employer’s general health and safety obligations were insufficient to discharge the UK government’s obligations to enact the more specific requirements of the PPE Directive. Domestic legislation therefore does not, in the High Court’s view, properly implement Article 3 of the PPE Directive.
The High Court therefore granted IWGB a declaration that the UK government had failed to implement the respective provisions of the directives correctly.
IWGB is a trade union representing mainly low-paid migrant workers and gig economy workers. The judicial review was sought in light of the effect the coronavirus (COVID-19) pandemic has had on IWGB’s members. IWGB had received more than 100 complaints from members, primarily relating to lack of PPE, failure to implement social distancing when waiting for collections inside and outside restaurants, and inadequate packaging of COVID-19 samples (the last point being relevant to medical couriers). It should be noted, however, that the High Court’s judgment does not demonstrate that couriers, taxi or private hire drivers, or others should be provided with PPE to protect them against the risk of contracting COVID-19. The ruling does not decide whether PPE is necessary in any particular situation. The judgment is concerned solely with the question of whether the UK government had properly implemented the two directives.
The key point for employers to note is the increased litigation risk given the additional number of individuals who may now benefit from enhanced health and safety protections. As discussed earlier, this is an issue for employers that engage independent contractors given the increasing trend of such personnel challenging their employment status. However, employers that have previously adopted a more relaxed approach from a health and safety perspective to the staff they classify as workers would also be well advised to revisit their policies and past practices. For example, and with the aim of mitigating the risk of any ERA Section 44(1)(d) claims (i.e., not being subject to detriment for refusing to come to work in circumstances of danger which the employee [and now worker] reasonably believed to be serious and imminent), employers should involve limb (b) workers in any consultation undertaken as part of a return to work plan. This may help prevent limb (b) workers refusing to come to work in the first place. It will also help reduce the risk of successful claims given the importance attached to the degree of the individual’s knowledge of what health and safety measures their employer has implemented.
Employers should also note that it remains the case that only employees are protected against unfair dismissal. This right has not been extended to limb (b) workers. However, in certain circumstances where, for example, a limb (b) worker refuses to deliver a good or perform a service due to a genuine belief they are in serious and imminent danger, that individual may be able to bring a successful detriment claim against the company where their contract is terminated as a result under ERA Section 44. As a result, limb (b) workers may benefit from some protection against dismissal.
Given this important and high-profile success for IWGB, employers may now face increased pressure from trade unions moving forward. Employers with recognised unions may face tougher consultations with union safety representatives as a result.
The High Court’s judgment fits squarely within the recent trend of courts extending legislation to confer protection on limb (b) workers, including the Employment Tribunal’s recent decision that TUPE protects limb (b) workers in addition to employees.
The UK government may appeal the decision and we expect the government to respond formally to the judgment shortly. If the government chooses not to appeal, the relevant legislation will need to be amended in accordance with EU law as soon as possible. The Brexit transition period is of course due to end on 31 December 2020. Any law made before the deadline must still be interpreted, as far as possible, in accordance with EU law. UK courts and tribunals may therefore interpret the relevant health and safety domestic legislation in accordance with the two directives. However, the UK government could expressly preclude limb (b) workers from the protections identified above in UK law when the transition period ends. This seems unlikely in practice given the government’s stated intention to retain EU derived employment rights in the future, and the general expansion of workers’ rights, which the UK government has helped to develop.