UK has failed to transpose EU law since 1992
- AuthorLeanne Day
A landmark High Court decision has been handed down in The Independent Workers' Union of Great Britain v The Secretary of State for Work & Pensions and others confirming that the UK has failed to properly transpose EU law and in doing so has failed to adequately protect workers from suffering a detriment as a result of taking steps to protect their health and safety.
The Framework Directive
The EU Framework Directive on Safety and Health at Work (89/391/EC) ("the EU Directive") was a milestone in improving health and safety at work. It meant that Member States had to implement minimum health and safety protection by the end of 1992.
The main Articles relevant to this case were Articles 8(4) and 8(5) of the EU Directive. Article 8(4) states that a worker may not be placed at a disadvantage or suffer harmful and unjustified consequences because of any action taken to leave their workplace in the event of serious, imminent and unavoidable danger. Article 8(5) says that all employers must ensure that workers are able to take appropriate steps to avoid danger which is serious and imminent.
What were the facts of this case?
The Independent Workers' Union of Great Britain represents around 5,000 members, many of whom are gig economy workers (a system made up of many temporary positions where independent workers are hired on a short term basis). Between March and May 2020, the Union received around 144 queries raising safety concerns from many who were scared to go to work, to include a lack of PPE, poor sanitising and cleaning facilities and social distancing concerns.
Proceedings were brought by the Union against the Secretaries of State in an attempt to obtain a declaration that the UK had failed to properly protect workers in accordance with the EU Directive in the same way that employees were protected.
It was argued that s.44 Employment Rights Act 1996 ("ERA 1996") covers employees and not workers, stating "an employee has the right not to be subjected to any detriment". As such, any worker who left their workplace for reason of avoiding serious or imminent danger was not protected from suffering a detriment for doing so.
What was the UK Government's defence?
The defence put forward on behalf of the UK Government was that the EU Directive only applied to those employed under a contract of employment.
They went on to claim that, if they were wrong, then in any event workers were covered by the protection offered by s.47B ERA 1996. This provision protects workers from suffering a detriment where they have made a protected disclosure.
What was the decision and why is it important?
The High Court held that the UK had indeed failed to properly transpose the EU Directive on the minimum health and safety requirements for workers, and that employers’ obligations to provide any necessary PPE were limited to employees only.
The Court established that the meaning of "worker" in the EU Directive imposed obligations on a much wider class of individuals and not just on employees, and that the definition was to have a single meaning across all Member States.
The UK Government's arguments regarding s.47B ERA 1996 were rejected on the basis that there was a gap in the legislation where workers weren’t protected. For example, a worker who takes steps to protect themselves from serious and imminent danger but does not make a protected disclosure would not be covered by s.44 ERA 1996.
This decision extents protection to thousands of workers across the UK and is therefore hugely important in the current pandemic. It means they can go about their work knowing that if they believe they are in serious or imminent danger then they can take steps to avoid this without suffering a detriment in the same way that employees have been able to do since 1992.
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