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The High Court rules that 'gig economy' workers are covered by health and safety protections derived from EU law

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The High Court recently handed down judgment in a significant judicial review brought by the Independent Workers' Union of Great Britain (IWGB) against the Secretary of State for Work and Pensions and the Secretary of State for Business, Energy and Industrial Strategy. 

IWGB describes itself as specialising in 'representing sections of the workforce which have traditionally been non-unionised and under-represented'. The claim was brought on behalf of 'gig economy' workers, including couriers and drivers, after concerns were raised about lack of PPE and inadequate implementation of social distancing in the course of their work. 
 
The Health & Safety Executive (HSE) joined as an Interested Party (being a third party who is directly affected by the claim). HSE is the independent regulator for work-related health and safety in Great Britain.
 
IWGB sought declarations that the UK had failed to properly implement certain provisions of two EU health and safety directives: the Framework Directive (89/391/EC) and the PPE Directive (89/656/EC).  IWGB complained that, whilst the Directives require protection for 'workers', the relevant domestic legislation applies only to 'employees', thereby excluding those working in the 'gig economy' who fall outside this definition.
 
The Court agreed with IWGB that the 'workers' referred to in the Directives included those referred to as 'limb (b)' workers under domestic law, which broadly equate to those working under contracts other than employment contracts, as defined by s. 230(3)(b) of the Employment Rights Act 1996.
 
As to the declarations sought, IWGB's claim succeeded in part:

In respect of the following provisions, the Court held that current UK law did not extend protection to limb (b) workers and was therefore improperly implemented:

  1. Article 8(4) and Article 8(5), para 2 of the Framework Directive, which protect workers from disadvantage where they take appropriate steps (including refusing to work) in response to serious and imminent danger. The protection allows workers to avoid danger without suffering harmful and unjustified consequences.
  2. Article 3 of the PPE Directive, which requires PPE to be used in circumstances where risks cannot be sufficiently avoided by other means.
However, in respect of the following general obligations contained in the Framework Directive, the Court found that implementation was properly effected in respect of limb (b) workers by s. 3 of the Health and Safety at Work Act 1974 ("HSWA 1974") which provides that employers should protect the health and safety of non-employees and others affected by the employer's business activities, together with more specific domestic legislation which broadly imposes duties on employers to protect the health and safety of workers.
 
Those working in the 'gig economy', particularly delivery drivers, have played a vital role during the pandemic, with many labelled as key workers earlier in the year. This judgment will provide welcome protection, bringing their rights in line with those working in more traditional employment relationships.  The judgment is also welcome in clarifying the wide application of s.3 of the HSWA 1974.
 
Nevertheless, businesses relying on 'gig' workers will need to re-evaluate their policies and procedures relating to the health and safety of non-employees in light of this judgment.
 
If you have any health and safety-related questions or concerns about your business in light of the coronavirus outbreak, Fieldfisher's health and safety team will be happy to discuss your specific circumstances with you. 

This article was co-authored by Fieldfisher Trainee Solicitor Sarah Kingsley Fried. 
 

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