The High Court has held in R (The Independent Workers’ Union of Great Britain) v The Secretary of State for Work and Pensions and ors that the concept of “worker” protected under two EU health and safety directives must include all those who fall within the EU law definition of the term. As such, so-called limb (b) workers such as gig economy workers are covered.
The Independent Workers’ Union of Great Britain, whose members are mainly low-paid, migrant workers, asked the High Court to make a declaration that the UK government had failed to properly implement two European health and safety directives. According to the union, the government had restricted their application to employees (who have fewer rights under UK law) as opposed to workers.
Although this gap in protection has existed since the end of 1992 (the deadline for transposing the directives), the onset of the coronavirus (COVID-19) pandemic gave the issue additional urgency for workers such as taxi, bus and van drivers. Often referred to as gig economy workers, it is people within these professions who have suffered higher than average rates of death from the virus and who have particular need for the health and safety measures required by the directives.
For its part, the government argued firstly that the Framework Directive (see below) contained a “bespoke” definition of worker which applied only to workers “employed by an employer” and that it had been properly implemented into UK law by imposing obligations to protect “employees”. Secondly, it contended that the protections conferred by UK law on workers who were not employees were enough to satisfy the minimum standards laid down by the directives.
The first directive (the 1989 Framework Directive) sets out measures for improving the health and safety of workers at work. Article 3 states that a “worker” includes “any person employed by an employer including trainees and apprentices but excluding domestic servants”.
The second (the 1989 PPE directive) was made under powers conferred by the Framework Directive and sets out the minimum health and safety requirements for workers using personal protective equipment (PPE) at work.
High Court decision
Rejecting the government’s argument that the concept of “worker” in the Framework Directive equates to the concept of “employee” under UK domestic law, the High Court agreed with the union that the term “worker” should be given as wide an interpretation as possible.
It therefore decided that the concept of “worker” protected by the directives must include all those who fall within the autonomous EU law definition of the term for the purposes of the treaty provisions on free movement and equal pay, with the exception of domestic servants. This was wide enough to include so-called “limb (b) workers” under UK law, a reference to the definition of “worker” under section 230(3)(b) of the Employment Rights Act 1996.
With regard to the government’s second argument, the High Court held that provisions in the Framework Directive which require employers to take all necessary measures to protect workers’ health and safety were adequately implemented by section 3 of the Health and Safety at Work Act.
However, although UK law ensures that workers can “take the appropriate steps” to avoid “serious and imminent danger” to their own safety and that of others under section 8 of the Management of Health and Safety at Work Regulations, only employees were protected from being placed at a disadvantage if they took those steps.
The High Court also held that UK law did not properly implement article 3 of the PPE Directive (which states PPE must be used when the risks cannot be limited by technical means) as limb (b) workers were excluded from its provisions.