High Court holds workers should have same health and safety protections as employees

Morton Fraser Partner Innes Clark
Innes Clark
01 December 2020

High Court judgement means, in the absence of an appeal, legislation will need to be introduced to extend the scope of protections to include the broader category of "workers".

In R (on the application of the Independent Workers‘ Union of Great Britain) v Secretary of State for Work and Pensions and anor the Independent Workers of Great Britain ("IWGB") brought an application for judicial review on behalf of a number of their members, many of whom were couriers, taxi and private hire drivers, bus and coach drivers, and other members of the gig economy.  Judicial review is the process by which judges examine the decisions of public bodies and consider whether the law has been correctly followed (or in this case implemented). 

The IWGB's central complaint was that two EU directives, one on health and safety at work ("the Framework Directive") and the other relating to the provision of PPE ("the PPE Directive") required Member States to confer certain protections on "workers", whereas the domestic legislation by which the UK had sought to transpose the Directives protected only "employees".  This, according to the IWGB, meant that workers were not adequately protected and nor were their "employers" required to provide PPE if the risk of an activity cannot be otherwise avoided.  While this gap in protection has existed ever since the deadline for transposing the Directives into domestic law in 1992, the current pandemic has brought it into sharp focus.

In defence, the UK Government departments who were responsible for the domestic legislation on health and safety at work argued that the concept of "worker" under the EU Directives aligned with the concept of "employee" under domestic law.  They also argued that even if that was wrong, the protections conferred by domestic law on workers who are not employees, although not identical to those conferred on employees, were sufficient to meet the minimum standards laid down by the Directives.

The High Court rejected the argument that "worker" under the Directives aligned with "employee" under domestic law.  However, having considered other domestic legislation the High Court found that the general health and safety obligations under the Framework Directive were properly implemented under section 3 of the Health and Safety at Work Act 1974.  This provides for employers to conduct their undertaking so that other persons, including workers, are not exposed to risk to their health and safety.  Similarly, the High Court were of the view that the Management of Health and Safety Regulations 1999 meant that the obligation to ensure workers could take appropriate steps to avoid danger had also been properly implemented into domestic law. 

However, the protection from detriment provided by section 44 of the Employment Rights Act 1996 for employees who leave work or take action in the face of serious or imminent danger and the requirement on employers under Regulation 4(1) of the PPE at Work Regulations were not replicated under any other domestic legislation.  As a result the application for judicial review was successful in so far as it related to these protections for workers and the High Court granted a declaration that the UK had failed to properly implement the Directives. 

Given this judgement will extend protections previously limited to employees under domestic law to many thousands more workers, it is a significant one.


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