In the landmark case The Independent Workers' Union of Great Britain, R (on the application of) v The Secretary of State for Work and Pensions & Ors, the Court found firmly in favour of a union representing gig economy workers.
The decision will give much welcomed health and safety protection to workers within the "gig economy." It means workers are entitled to the same protection as employees against suffering detriment if they take steps to protect themselves by refusing to work when faced with the serious and imminent danger of being exposed to COVID-19. Further, they will be entitled to be provided with any necessary Personal Protective Equipment (PPE).
We explore the case in detail below, looking at these developments and what they could mean for employers moving forward.
Background and summary of the case
Employment protection legislation seeks to distinguish between dependent and independent labour. At one end of the employment status spectrum are 'employees' who are afforded the greatest level of protection. At the other end of the spectrum are the self-employed who are not entitled to any employment protection rights. Somewhere in the middle are 'workers' who are entitled to some valuable employment rights including National Minimum Wage, holiday pay, discrimination and whistleblowing protection.
While all employees are also workers, not all workers are employees under the Employment Rights Act 1996 (ERA). Under section 230(3)(b) of the Employment Rights Act 1996 to establish that an individual is a 'worker': (1) the individual must be working under a contract in which they agree to personally provide work; and (2) the 'employer' must not be a client or customer of any profession or business undertaking carried on by the individual. Individuals who fall within this definition are often referred to as "limb (b) workers".
Many "gig economy" workers are classed as limb (b) workers, as opposed to employees. Examples of limb (b) workers include: some courier drivers and cyclists.
The Independent Workers' Union of Great Britain (IWGB), which represents around 5,000 workers, sought a judicial review arguing that the UK government had failed to transpose into UK law important EU health and safety provisions. They highlighted that many of these limb (b) workers have worked throughout the COVID-19 pandemic, exposing themselves to a higher risk of catching the virus. The IWGB asserted there is a particular need for the kind of health and safety measures that the EU health and safety provisions require.
Many of these workers had raised concerns about not being given PPE by their employers. They said that the lack of protection in UK law meant that they ran the risk of being suspended or terminated if they took steps to protect themselves by stopping work.
The Court found in favour of the IWGB and concluded that the UK has failed to grant workers in the gig economy the rights they are entitled to under European directives on safety and health at work. The judgment means that workers in the gig economy are entitled to the same health and safety rights as employees, including being provided with PPE by the business they are working for and having the right to stop work in response to serious and imminent danger. The Government must now take steps to ensure workers have the same protection as employees.
What does this mean for employers?
Under UK health and safety law, employers have a duty to ensure - so far as reasonably practicable - that their employees and other people who might be affected by their business, are not exposed to risk to their health, safety or wellbeing from their activities. Breach is a criminal offence by the employer. If found guilty, the employer will face a fine. Employers cannot insure for these fines and it is also not legally possible to contract out of the duty.
From an employment law perspective, this ground-breaking decision means that, if they haven't been doing so already, employers will need to ensure these gig economy workers have the right to refuse unsafe work and are given PPE as necessary.
Although we are yet to receive official guidance from the government on amending the domestic legislation, it is important to prepare for this change and to acknowledge that as things currently stand, this case and any amended legislation will continue to apply after the UK has left the EU.
What steps need to be taken?
Employers should consider the following:
- Altering workers' contracts to make their rights clear;
- Ensuring that company policy and procedure on the treatment of workers is compliant;
- Updating risk assessments and procedures accordingly to ensure that necessary control measures are applied to workers, as well as employees, and that workers are provided with PPE as necessary; and
- Briefing line managers who are responsible for affected workers, so as to ensure that they are up-to-date on the changes and that they treat workers accordingly.
Next steps in the absence of government guidance
The UK Government will be expected to amend the relevant domestic legislation to ensure that such workers have the same protections as employees in this respect. Until they do so, an affected worker may bring a claim for damages against a member state for any loss suffered by them as a result of the government's failure to implement or breach EU law (these are known as Francovich claims).
The ability to make Francovich claims will be lost after the end of the transition period (31 December 2020), as they are excluded from the scope of retained EU Law. There are a few exemptions to this, most notably parties should be aware that there is a two-year window after exit day for bringing a Francovich claim in respect of any violation of EU law occurring before the end of the transition period.