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Chambers & Partners
13/11/2020

OSC successful in ground-breaking challenge to Government failure to extend H&S protections to workers during COVID-19 pandemic

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Ijeoma Omambala QC and Cyril Adjei have been successful in the judicial review claim in R (Independent Workers’ Union of Great Britain) v (1) Secretary of State for Work and Pensions (2) Secretary of State for Business, Energy and Industrial Strategy & (3) Health and Safety Executive (Interested Party)). Judgment was handed down today.

Ijeoma and Cyril acted on behalf of the IWGB and were instructed by Kate Harrison and Harry Campbell of Harrison Grant solicitors.

Assistance was also provided by Professor Alan Bogg of Bristol University.

In this ground-breaking case in the fields of health and safety, EU and employment law, the Administrative Court (Mr. Justice Chamberlain) has agreed with the IWGB that the UK Government has failed to transpose into UK law important EU health and safety protections that are set out in:

  • Council Directive 89/391/EC (“the Framework Directive”); and
  • Council Directive 89/656/EC (“the PPE Directive”).

This is because in UK law these protections have only been extended to employees, whereas the Court found that their scope is wide enough to also include workers, as defined in s.230(3)(b) of the Employment Rights Act 1996 (often called “limb b workers”).

Many of the IWGB’s members are precarious, “gig economy” workers, who are classed as limb b workers in the UK rather than employees. These workers include private hire vehicle drivers and couriers who have worked continuously during the Covid-19 pandemic to provide essential and much-valued services. This has exposed them to a significant risk of contracting the virus whilst at work.

Many of these workers have raised concerns about not being given necessary PPE by their employers. They also run the risk of having their engagements suspended or terminated if they take steps to protect themselves by stopping work when faced with the serious and imminent danger of being exposed to Covid-19 at work.

In contrast, employees enjoy extensive health and safety protections in UK law that are derived from EU law, more particularly, article 8(4) & article 8(5) of the Framework Directive and article 3 of the PPE Directive. Employees have a number of rights, including the right to stop work when faced with serious and imminent danger at work and to take other steps to protect themselves or others when faced with such danger without being punished for taking such action. In addition, their employers are under an obligation to provide them with any necessary PPE.

When the UK Government purported to transpose the Directives into UK law, it only extended the protections to employees. It left workers unprotected.

Before the Administrative Court, the IWGB argued by way of judicial review that by not extending EU-derived health and safety protections to include limb b workers, the UK Government had failed properly to transpose the EU Directives into UK law. Following an extensive review of EU legislation and case law, the Administrative Court has now declared that the UK Government has failed properly to transpose the Directives into UK law and that the health and safety protections should be extended to include limb b workers.

The IWGB expects that in the light of this clear ruling, the UK Government will now take urgent legislative measures to ensure that limb b workers are covered by the EU-derived health and safety protections. The decision is likely to affect a significant number of precarious workers in the gig-economy, particularly those that risk being exposed to Covid-19 at work.

It will also call into question whether other EU-derived rights and protections should also be extended to cover limb b workers.

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