The High Court determines that EU health and safety protections should apply to "workers" as well as employees

The High Court has held that the UK government has failed to properly transpose into domestic law certain aspects of two EU Directives on health and safety at work because some of the protections provided for in those Directives apply only to individuals categorised in the UK as "employees" and not more broadly to "workers".

What is the difference between an employee and a worker?

The importance of this ruling turns on the distinction in the UK between an employee and a worker.

An employee is someone employed specifically under a contract of employment. Employees have access to the full range of employment and health and safety rights under UK law. By contrast, a worker is someone who works under some other form of contract whereby they undertake personally to carry out work or services for reward for someone who is not a client or customer of a business carried on by the worker. Workers do not have full employment rights but are afforded some protections such as entitlement to the minimum wage and to holiday pay. These workers are often referred to as "limb (b) workers" after the relevant paragraph of the Employment Rights Act which creates the status of a worker. 

Background to the decision

The High Court was asked to review the transposition into domestic law of parts of two EU health and safety Directives in a claim brought by the Independent Workers' Union of Great Britain ("IWGB"). The IWGB is no stranger to bringing judicial review claims. The trade union, whose 5,000 members are predominantly low-paid, migrant workers, and those working in the "gig economy", has brought a number of judicial review claims since it was founded in 2012, aiming to protect the rights of the workers it represents. 

The COVID-19 pandemic has given many pause to think about what it means to work in a 'safe' environment, and how risks arising from a person's work can or should be managed. The challenge with the pandemic has been that COVID-19 is a public health risk which affects society at large, and the scientific knowledge about its transmission and control has been evolving. The IWGB's claim was prompted by a number of reports received from its members that their safety was being put at risk by the lack of personal protective equipment (PPE) available to them, the absence of social distancing measures and other reports of unsafe practices. Many of the people that the IWGB represents work in the industries that have higher than average rates of death from COVID-19, such as taxi drivers and bus and coach drivers. The IWGB argued, therefore, that these workers had a particular need for the type of health and safety protections that the Directives require.

What are the relevant Directives?

The claim concerned the following EU Directives which were both transposed into UK domestic law almost thirty years ago: 

• The Health and Safety Framework Directive ("Framework Directive") which deals generally with health and safety measures at work; and
• The PPE Directive, made under the Framework Directive, which relates to the use of PPE in the workplace.

Both Directives confer protections on "workers", defined in the Framework Directive as "any person employed by an employer, including trainees and apprentices but excluding domestic servants".

What did the court decide?

There were two issues for the High Court to consider, as follows.

Are limb (b) workers within the scope of the Directives?

The first question for the Court to decide was whether the term "workers" as defined in the Framework Directive should be interpreted to include limb (b) workers in the UK. Having conducted a detailed analysis of the relevant case law and the language of the Directive, the Court concluded that the term should be interpreted broadly and was wide enough to cover limb (b) workers.

Do limb (b) workers in the UK receive the protections required under the Directives?

The Court then had to consider whether, in transposing the two Directives into domestic law, the UK government had in fact conferred the necessary protections on limb (b) workers as well as on employees (there being no disagreement that employees were covered). 

The Court looked first at the general obligations in the Framework Directive to ensure the health and safety of workers in every aspect related to work, and to take the measures necessary for the safety and health protection of workers. It concluded that these obligations were implemented as regards limb (b) workers by section 3 of the Health and Safety at Work Act 1974, taken together with other provisions of UK domestic law, such as the Management of Health and Safety at Work Regulations 1999.

However, the Court found that the following aspects of the Directives were not properly implemented into UK legislation in that they do not extend the necessary protections to limb (b) workers: 

• Articles 8(4) and 8(5) of the Framework Directive - these provide that workers who leave their workstation and/or a dangerous area, or take appropriate steps in response to serious and imminent danger, are not to be disadvantaged for doing so unless they act carelessly or negligently. This is implemented for employees via section 44 of the Employment Rights Act 1996, which protects employees against being subjected to a detriment for having taken steps to protect themselves or others from serious or imminent danger. The government argued that limb (b) workers were afforded equivalent protection because they were likely to "blow the whistle" on dangers at work and so would be protected from detriment under whistleblowing legislation (which also extends to limb (b) workers). The Court rejected this, finding that a limb (b) worker might not make a protected disclosure but was still entitled under the Framework Directive to be protected from disadvantage for having taken steps to protect themselves or others. The Court held, therefore, that these two Articles of the Framework Directive were not adequately implemented in UK law as regards limb (b) workers. 

• Article 3 of the PPE Directive – this requires PPE to be used "when the risks cannot be avoided or sufficiently limited by technical means of collective protection or by measures, methods or procedures of work organization". This is implemented in the UK via the Personal Protective Equipment at Work Regulations 1992 which refer only to employees; the High Court rejected the government's submission that other UK laws and regulations extend equivalent protection to limb (b) workers.

Impact of the Decision

The High Court's decision is significant in establishing that the two particular health and safety protections identified above should be extended to limb (b) workers. We understand that the government has not lodged an appeal against this decision within the deadline for doing so, although there has been no formal response as yet setting out what action, if any, the government proposes to take. It remains to be seen whether the government will amend the law to bring it into line with the High Court's decision or whether it decides to take a different stance, noting it will be open to the government from 1 January 2021 to diverge from EU law. The latter is perhaps unlikely given the government's expressed commitment to preserve employment rights post-Brexit.

Irrespective of what happens next in relation to the two areas where UK law was found to be deficient, the decision serves as a reminder that, as far as an employer's general health and safety duties are concerned, limb (b) workers in the UK are generally entitled to the same health and safety protections as employees under the Health and Safety at Work Act and secondary legislation. 

Those who engage limb (b) workers may therefore wish to take this opportunity to review the measures they take to discharge their health and safety duties. These measures may include, depending on the circumstances, providing PPE and reviewing existing health and safety policies and risk assessments. The High Court was careful to note that this case concerned general principles only and that it was not making any findings as to whether individual workers had valid complaints, or whether employers are required to provide PPE in particular circumstances. These are fact-specific matters, which is why it is important that employers take steps to assess - and mitigate - the particular workplace risks to which their employees, workers and others are exposed.

The issue of a person's employment status has become a key area of dispute in recent times following a number of successful claims by those working in the gig economy that they are in fact limb (b) workers rather than self-employed. This particular case was not about whether IWGB's members are workers and nor do the High Court's conclusions mean that limb (b) workers are automatically entitled to other rights or protections derived from EU legislation which are currently conferred in UK law only on employees. Nevertheless, the decision reflects the fact that the range of rights and protections available to those who fall into the category of worker is expanding. 

Further information

For more information about the implications of this decision of if you have any questions, please get in touch with any of those whose contact details are set out below.