Health and Safety protections under EU Health and Safety Directives apply to ‘limb b’ workers

R (Independent Workers Union of Great Britain) v Secretary of State for Work and Pensions and another: Health and Safety protections under EU Health and Safety Directives apply to ‘limb b’ workers. Caroline Musgrave, an equality barrister at Cloisters, considers the judgment and its importance for gig workers during the COVID-19 pandemic.

Today, the High Court (Chamberlain J) has handed down an important judgment in a judicial review brought by the Independent Workers Union of Great Britain (“IWGB”) against the Secretaries of State for Work and Pensions and Business, Energy and Industrial Strategy.

IWGB sought a declaration that the UK had failed properly to transpose Council Directive 89/391/EC (“the Framework Directive”) and Council Directive 89/656/EC (“the PPE Directive”) into domestic law. IWGB argued that the Directives required Member States to confer health and safety protections on workers, whereas domestic legislation only protected employees. The issue arose in the context of IWGB’s members working during the Covid-19 pandemic and evidence that gig economy workers were not being provided with personal protective equipment.

The Defendants’ position was that the concept of “worker” in the Framework Directive corresponded with the concept of “employee” under domestic law. Alternatively, they contended that protections conferred on workers under domestic law were sufficient to transpose the Directives.

On the first issue, the High Court held that workers referred to in the Directives are persons who fall within the autonomous EU legal definition of worker (with the express exception of domestic servants), and protection under the Directives applies to ‘limb b’ workers in domestic law.

The Court then held that the general health and safety obligations in Article 5 and 6 of the Framework Directive were properly implemented by s. 3 of the Health and Safety at Work Act 1974, which requires employers to conduct their undertaking so that other persons (including workers) are not exposed to risks to their health and safety. The Court also held that the obligation to ensure workers could take appropriate steps to avoid danger were properly transposed through the Management of Health and Safety Regulations 1999.

However, the Court held that there were no equivalent domestic protections for workers not to be disadvantaged for taking steps in response to danger, nor were there equivalent obligations on employers in respect of PPE. IWGB was therefore partly successful in establishing a failure to transpose these two obligations into domestic law.

Comment: This case was brought by the IWGB following multiple requests for assistance from their member couriers, drivers and other members of the gig economy raising issues such as the lack of PPE, failure to implement social distancing during deliveries, provision of sanitising and cleaning products and failure to package COVID-19 samples correctly. It was not the function of the Court to determine the fact sensitive rights and wrongs of those individual situations. But what this important decision does do is to extend health and safety protection to hundreds of thousands of workers including those in the gig economy. The case has huge significance in the current COVID-19 pandemic with so many of us reliant on gig economy workers. Now those workers can seek proper health and safety protection as they go about their work.

The full judgment can be read here.

The Defendants were represented by Caspar Glyn QC and Tom Brown of Cloisters, instructed by the Government Legal Department.