In a judicial review claim brought by the IWGB union on behalf of gig economy workers, the High Court has ruled that UK domestic law does not properly implement the EU Health and Safety Framework Directive and the Personal Protective Equipment Directive in that it limits some protections to employees rather than the broader category of ‘limb b workers’. (‘Limb (b) workers’ include, in addition to those with an employment contract, individuals who undertake to do work personally for another party who is not a client or customer of the individual’s profession or business.) (IWGB v SoS for Work and Pensions)
The High Court concluded that the term ‘worker’ used in the relevant Directives referred to the autonomous EU law meaning of that term (subject to an express exclusion of domestic servants) and that this included ‘limb b workers’. Although domestic law does extend the general obligations on employers to ensure health and safety to workers, only employees are covered by the requirements to supply and use PPE in certain circumstances, and it is only employees who, when faced with serious and imminent danger at work, are protected against detriment for leaving work, proposing to leave or refusing to return or for taking or proposing to take appropriate steps to protect themselves or other persons. Protection of workers from detriment for whistleblowing about health and safety concerns does not provide the same protection.
Subject to any appeal, the UK Government will be expected to amend domestic legislation to extend these protections to all ‘workers’ (and, pending this, an affected worker may bring a claim against the Government for any loss suffered as a result of the failure to implement EU law properly). Although private sector employers will only be affected once the law is amended, reputational considerations particularly during the COVID-19 pandemic may mean that employers who currently provide PPE to their employees should consider doing the same for their limb (b) workers prior to this becoming obligatory. Following legislative amendment, employers will also need to bear in mind the potential for claims if employers terminate or suspend workers for taking steps to protect themselves by stopping work when faced with serious and imminent danger.