HM Insights

Are workers due the same Health and Safety rights as employees?

By Scott Milligan and Marc Penman

Over the past few years, there has been an increasing body of case law relating to the varying rights given to, and the distinction between, the different classifications of "employees", "workers" and "self-employed". This is not only directly relevant in employment law, but also in other spheres such as tax law.

The recent case of the Independent Workers' Union of Great Britain (IWUGB) v The Secretary of State for Work and Pensions and others [2020] EWHC 3039 (QB) (Admin) is a case that considers this matter from a health and safety perspective and, as such, has significant implications for organisations that engage workers.

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Details of the case

The case was founded on a judicial review sought by the IWUGB in relation to the EU Framework Directive on Health and Safety (the "Framework Directive") and its application into domestic law in the UK. The Framework Directive introduced a series of individual directives to be implemented and adopted by EU Member States, with the Personal Protective Equipment (PPE) Directive being one directive in particular that the IWUGB sought clarification on.

In essence, the IWUGB were seeking a declaration from the High Court that UK legislation should give workers the same level of protection as employees, on the basis that this was the intention of the relevant EU Directives and their interpretation.

This was of particular importance in the current environment, as the IWUGB is a relatively new trade union (formed in 2012), established to represent those who were predominantly lower-paid workers in the 'gig economy'. This includes, for example, private hire drivers and delivery drivers. In light of their continuing work during the Covid-19 pandemic, IWUGB argued that the domestic legislation did not give workers the protection that the Framework Directive required.

The main considerations of the case were that;

  • the definition of worker for the purpose of the Framework Directive and PPE Directive should be the same as the Directives that deal with free movement, working time etc.;
  • the Framework Directive and PPE Directive are intended to protect both employees and workers; and
  • the UK legislation implementing the Framework Directive and PPE Directive (being sections of the Employment Rights Act 1996 and the Personal Protective Equipment at Work Regulations 1992) should be providing the same protection for workers and employees.

The decision – and what it means

The High Court decided in favour of IWUGB and issued a declaration to that effect. This means that, subject to any subsequent appeal, UK legislation will need to be amended to widen its scope and application insofar as the rights of workers now must replicate those of employees for this purpose.

Those engaging workers will therefore need to be aware of this requirement to protect health of workers, and not just employees. It is also another example of a narrowing of differential between worker and employee rights.

Get in touch – we're here to help

If your organisation has any queries about the differences in law between workers, employees, and the self-employed and what this means for your business, then please contact one of the employment team.

Useful links

EMPLOYMENT LAW FOR EMPLOYEES

EMPLOYMENT LAW FOR EMPLOYERS