Health and Safety Needs of ‘Gig’ Economy and Workers Recognised

A recent High Court case has recognised the needs of ‘workers’ as well as ‘employees’ under health and safety rights.

The former now gain protection (in the Employment Rights Act 1996) against disadvantage during employment or dismissal for raising concerns and questioning employers’ health and safety activity and given the pandemic scare of 2020 this is a key piece of legislation in the High Court.

Commenting on the recent case, Pearson employment law solicitor, Susan Mayall, said: “Businesses should be aware of the Health and Safety issues surrounding  COVID-19 and that this case extends that protection to workers as well as employees.

“Covid-19 is not going to disappear in 2021 and so employers should continue to be vigilant, not relax and at all times make sure all staff, employees and workers, have a safe working environment – we always say the rules in employment law are constantly changing and 2020 has certainly seen that in abundance,” she added.

The case was brought by the Independent Workers‘ Union Great Britain (IWGB) and it was upheld that there had been a failure to implement Article 8(4) and (5) of the EU Health and Safety Framework Directive (No.89/391) confining protection from detriment on health and safety grounds under S.44 of the Employment Rights Act 1996 to ‘employees’.

“Anyone who performs services for and under the direction of another person for payment should be afforded protection and this therefore extends to ‘workers’ as recognised in EU law,” Susan Mayall concluded.

Back in March when coronavirus was hitting the headlines and businesses all over the UK were either shutting down or providing staff with protective equipment. The union claimed that its members, mainly made up of migrant workers, those on low wages and the so called ‘gig’ economy workers were unprotected. It said concerns over a lack of PPE, social distancing rules being ignored and substandard packing of COVID-19 samples so medical couriers were not protected, which led to 144 queries and scared staff.

Workers or Employees health and safety laws

It was claimed by the union that there was a distinction between ‘workers’ and employees’ and that the UK employment and health and safety laws did not adequately protect the former.

The High Court proceedings sought a declaration that the UK had failed properly to transfer into domestic law Council Directive 89/391/EC on the introduction of measures to encourage improvements in the health and safety of workers at work (‘the Framework Directive’) and Council Directive 89/656/EC on the minimum health and safety requirements for the use by workers of personal protective equipment at the workplace (‘the PPE Directive’).

The Member States it was argued should have certain protection for ‘workers’, whereas UK domestic legislation – principally contained in the Health and Safety at Work Act 1974 (HSWA) and the ERA – confines protection to ‘employees’.  The High Court agreed with IWGB and concluded that ‘worker’ includes anyone who would fall within the autonomous EU law definition.

A full transcript of the case can be read on the British and Irish Legal Information Institute website.

For employers seeking further advice on all aspects of employment law call Susan and the team on 0161 785 3500 or email enquiries@pearsonlegal.co.uk

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Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

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