Safe to work? How the High Court ruled against the UK

However, the High Court has just levelled the playing field when it comes to EU health and safety law by ruling that the UK has failed to implement a 30-year-old EU directive correctly and that workers should have the same rights, when it comes to health and safety, as employees. If you employ people in your business – this article is for you.

What does statute say?

The two pieces of UK legislation that you need to know about are:

1. the Employment Rights Act 1996. This act states that an employee has the right not to be subjected to any detriment for leaving an unsafe workplace or refusing the return to work where they reasonably believe that they are in ‘serious or imminent danger’.

2. Health and Safety at Work Act 1974. This act provides a general duty for an employer to make sure that their employees are safe.

What’s happened?

During the first Covid-19 Lockdown of 2020 the IWGB (the Independent Workers’ Union of Great Britain – whose 5,000 gig-economy members work predominantly in low-paid positions) received approximately twelve dozen enquiries from members who were worried that their employers had provided inadequate PPE, not implemented appropriate social distancing measures, and failing to protect certain groups (mainly medical couriers) from exposure to Covid-19.

The IWGB sought a declaration from the High Court that the UK had manifestly failed to implement European Union Directives to introduce measures to encourage improvements in the health and safety of workers at work (otherwise known as Council Directive 89/391/EC). In other words, the UK employment Health and Safety laws did not adequately protect workers. Instead, the EU directive had been incorporated into UK law in such a way that it only provided adequate protection to employees.

This ‘protection gap’ has existed since the Council Directive was amalgamated into UK law – in 1992 – but this discrepancy has only been thrust into the limelight during the current pandemic – when gig workers were experiencing higher risks that their ’employee’ counterparts – with no recourse.

What did the High Court say?

The High Court agreed with the IWGB’s claim that the directive extends to workers as well as employees. The court reviewed the EU legislation and observed the following:

• There is not one single definition of the term ‘worker’ in EU law, but it varies depending on context.

• In the original directive, the term ‘worker’ should be interpreted broadly. This includes workers as they are defined within UK legislation – which means that UK workers are entitled to protection under the EU Directive.

• The directive was therefore not properly implemented in UK law – as its implementation only protected employees, as opposed to both employees and workers.

What happens next?

The UK law be amended in order to make it comply with the original directive – provided that the decision is not appealed. Until that point, however, employment tribunals will be asked to give a broader definition to the term ’employee’ in UK law (specifically S.44 of the Employment Rights Act)– so that it also applies to those defined in UK legislation as ‘workers’.

Workers will also have protection, moving forwards from being punished for leaving an unsafe workplace or refusing the return to work where they reasonably believe that they are in ‘serious or imminent danger’ – as employees have for decades.

What should I do?

If you’re an employer – make sure that everyone who works for you- whether an employee or a worker – is safe and protected in their working environment.

If you’re a worker (or an employee for that matter) and you are being asked to work in a dangerous and unsafe environment, then get in touch with us. You may not have to return to work, and may be able to claim for constructive dismissal if you have to leave your job because of this.