Right to be protected from detriment on health and safety grounds should extend to workers


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The High Court has held in The Independent Workers' Union of Great Britain v The Secretary of State for Work & Pensions and others that workers should have protection from being subjected to detriments on health and safety grounds, and the right to be provided with PPE, in the same way as employees.

The Independent Workers' Union of Great Britain (IWUGB) brought an application for judicial review on behalf of its members, predominantly lower-paid workers in the "gig economy" at increased risk due to COVID-19. The IWUGB sought a declaration that the government had failed to properly implement two EU directives on health and safety at work and the provision of PPE due to the fact that the UK legislation protected "employees" rather than the broader category of "workers".

The Framework Directive (on health and safety at work) states that it protects employees and workers; a "worker" includes "any person employed by an employer including trainees and apprentices (but not domestic servants)". The Directive is the source of the protections in section 44 of the Employment Rights Act 1996 for employees who leave their workplace or take action in circumstances of serious and imminent danger.  The PPE Directive, which was introduced under the Framework Directive, is the source of the rules in the PPE at Work Regulations that an employer must provide PPE if the risks of an activity cannot otherwise be avoided.

In looking at other Directives and case law, the High Court held that the definition of worker for the purpose of the two Directives mentioned above should be the same as those used in the Directives on free movement, equal pay and working time. This meant that workers should be given the same level of protection as employees when it came to being subjected to detriments on health and safety grounds and the right to be provided with PPE. The government will now have to introduce legislation to extend the scope of these protections to include the broader category of workers unless it chooses to appeal this decision.

Take note: This is an important decision in that it extends the protection from detriment for refusing to work, or taking other steps to protect health and safety, to workers as well as employees.
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