Workers are entitled to the same protection as employees when taking steps to protect themselves from COVID-19

The High Court has held that domestic legislation fails to properly implement EU health and safety legislation. Section 44 of the Employment Rights Act 1996 (ERA 1996) prohibits employers from penalising an employee who reasonably believes they are in serious and imminent danger and leaves their work to avoid that danger and/or takes appropriate steps to protect them or others from the danger. The High Court concluded that, in order properly to implement EU legislation, this protection from detriment should be extended to workers who reasonably believe they are in serious and imminent danger.

The facts of R (Independent Workers' Union of Great Britain) v Secretary of State for Work and Pensions and another are topical. The Independent Workers’ Union of Great Britain (IWGB) represents many gig economy workers who act as private hire vehicle drivers and couriers and who have been providing essential services during the COVID-19 pandemic. Many of their members complained to the IWGB that they felt at significant risk of contracting COVID-19 from their work, due to issues such as inadequate PPE, failure to implement social distancing and failure to correctly package COVID-19 samples to protect medical couriers. 

As these individuals did not fall within the UK definition of “employees”, they were not afforded the same legal protection if refused to undertake work which they reasonably believed exposed them to serious and imminent risk of contracting COVID-19. In view of this, the IWGB brought High Court proceedings against the Secretary of State, seeking a declaration that the UK has failed to transpose EU legislation into domestic law.

The EU Health and Safety Framework Directive (89/391/EC) states that, "Workers who, in the event of serious, imminent and unavoidable danger, leave their workstation and/or a dangerous area may not be placed at any disadvantage because of their action and must be protected against any harmful and unjustified consequences, in accordance with national rules and/or practices." The Framework Directive defines “worker” as, “any person employed by an employer, including trainees and apprentices but excluding domestic servants.”

The High Court concluded that the protections under the Framework Directive apply to a wider group of people than the narrow definition of “employees” in UK legislation. Having considered the case law, the High Court concluded that the use of the words “employed by” in the definition of “worker” is a misnomer: all workers (with the exception of domestic servants) should be protected under the Framework Directive, not only those working under a contract of employment. 

The High Court rejected the UK government’s argument that a worker who leaves their workstation or takes appropriate steps in response to a serious and imminent danger to their safety has equivalent protection as a whistleblower. For a worker to be protected under whistleblowing legislation, they need to have made a qualifying disclosure that satisfies the statutory definition of a “protected disclosure”. The High Court disagreed that the UK’s whistleblowing legislation provides workers with the protection required by the Framework Directive. In reaching this conclusion, the High Court recognised that there may be a number of circumstances where a worker takes steps to protect themselves from danger without making a whistleblowing protected disclosure and would, therefore, be left without legal protection from detriment.

The High Court’s decision confirms that workers are now entitled to the same protection as employees against suffering a detriment in circumstances where they act to protect themselves and others from serious and imminent danger. The decision will be welcomed by the millions of workers in the UK’s gig economy, especially during the current period of heightened risk posed by COVID-19.