Under section 44 of the Employment Rights Act 1996 (“Section 44”) employees have the right not to be subjected to any detriment by their employer where, for example, they do not come to work believing that doing so would place them in serious and imminent danger.
Prior to the pandemic Section 44 was infrequently used by employees as it was something of a rarity for employees to be facing serious and imminent danger in the course of their work. However, as COVID-19 worked its way around the globe Section 44 has come under great scrutiny, with particular focus on whether it adequately implements EU law requiring that “workers” should be protected from detriments on health and safety grounds.
As the recent case of R (on the application of the Independent Workers‘ Union of Great Britain) v Secretary of State for Work and Pensions and others demonstrated, workers should also benefit from this protection in the same way as the narrower category of employees.
The Independent Workers’ Union of Great Britain (the “Union”) is a trade union comprising of 5,000 members who are predominantly lower-paid workers in the ‘gig economy’, including taxi/bus drivers and delivery workers. Between the beginning of March and 21 May 2020, the Union assisted a number of its members with COVID-19 related workplace issues such as the lack of PPE or failure to implement social distancing. Some of its members were scared to work without the PPE they considered they needed. However as they were “workers” (and not employees) they did not benefit from the same health and safety protections as employees under UK law. In particular, they could not rely on Section 44 and, for example, refuse to work.
The Union brought High Court proceedings, arguing that by only offering these protections to “employees” in Section 44, the UK failed to properly implement the EU Directives requiring Member States to confer these particular protections on “workers”.
The Secretary of State argued that the meaning of the word “workers” in the EU Directives corresponded with the meaning of “employee” under UK laws and that the Union’s members were therefore not entitled to protection. Alternatively, the Secretary of State argued that existing laws provided the required level of protection to workers as, for example, under the Employment Rights Act 1996 workers benefit from protection if they “blow the whistle” regarding health and safety matters.
The Court agreed with the Union and held that the relevant EU Directives imposed obligations in relation to workers and not just employees.
The Court then went on to consider the protection from detriment afforded to employees on health and safety grounds under the Employment Rights Act 1996 and concluded that failing to extend the protections under Section 44 to workers meant the relevant EU Directive had not been implemented properly.
This significant judgment could have wide ranging implications as, if the government does not appeal the decision, it will have to introduce legislation to extend this protection to the broader category of workers. In the context of COVID-19, this will particularly help gig economy workers, especially those in public facing roles.
In the early months of lockdown, it was indeed thought that only employees could refuse to work fearing that they might catch COVID-19 but remain entitled to pay. As it is now clear that workers may also benefit from this right, it is even more crucial that businesses take all reasonable steps to protect their workers and create a safe work environment.