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Gig Economy Workers could get Health and Safety protections after new judgment

During the COVID-19 pandemic, delivery workers have played a huge part in keeping the country moving and helping the economy to survive. A particularly important role has been played by workers in what is known as the gig economy. They are often low-paid and with little job security and yet they have continued to work, making deliveries when it has been very difficult for customers to access shops physically.

However, despite their efforts, these workers have reported numerous instances of having to work in conditions which they fear might expose them to the risk of COVID-19 with no PPE provided by their employers and no legal right to ask for its provision. They also have no legal right to stop work if they feel that their health and safety is being threatened by danger of exposure to the virus. This is in contrast to the protections enjoyed by employees, who have the right to both PPE and to walk off a job if they fear for their health and safety, with no detriment occurring to them if they do.

This discrepancy is what the Independent Workers’ Union of Great Britain (IWUGB) sought to address when it took its case to the High Court (Independent Workers' Union of Great Britain (IWUGB) v The Secretary of State for Work and Pensions and others [2020] EWHC 3039 (QB) (Admin)). The union, which has about five thousand members, and which has been involved in several court cases centred around the rights of gig economy workers, asked for a judicial review; their case was that the government had failed to bring into UK law two important EU health and safety provisions:

  • The “Framework Directive” on the introduction of measures to encourage improvements in the health and safety of workers.

  • The PPE Directive, on minimum health and safety requirements for use of PPE by workers in the workplace.

These directives obliged EU member states to extend protection to all workers, while the legislation that brought this into UK law covered only employees.

In all but one of the claims, the High Court found in favour of the union. This means that health and safety protection may well now be extended to all workers, not just employees, including those in the gig economy. It is possible that the government may appeal the judgement but if it chooses not to, it will have to introduce legislation to bring this about.

What happens next?

Now that the UK has left the EU, the question of the relation between UK and EU law has come under scrutiny. The EU Withdrawal Act says that any UK law passed or made before the end of the transition period (December 2020) has to be interpreted, as far as possible, in accordance with EU law. Courts and tribunals will therefore have to carry on interpreting UK law in accordance with the health and safety directives referred to above. This means that they could well interpret Section 44 of the Employment Rights Act as covering workers.

What does this mean for employers?

Health and safety legislation says that employers have a duty to ensure, so far as is reasonably practicable, that employees and others, including members of the public, who might be affected by the activities of the business, are not exposed to health and safety risks arising from those activities.

Any breach of this legislation will mean that the employer has committed a criminal offence. If they are found guilty, a fine will ensue.

In addition, an employer cannot contract out of this duty; basically, this means that even if they engage someone else to administer their health and safety, the responsibility and criminal liability remain theirs.

The High Court’s decision means that employers will have to change their working practices and policies to reflect it; this will include making sure that gig economy workers have the right to say no to unsafe work and are given the PPE they need to do the job safely.

There has been no guidance from the government on an amendment to domestic legislation, but employers should nevertheless start to prepare for the change. It should be borne in mind that this case, and any amended legislation is still applicable now that the UK has finally left the EU.

Employers should think about the following steps:

  • Revising workers’ contracts so that their rights are made clear to them.

  • Making sure that their policies and procedures on the treatment of workers comply with both the ruling and EU law.

  • Taking another look at risk assessments and procedures to make sure that necessary control measures apply to workers in the same way as they do to employees, and that PPE is provided to workers whenever necessary.

  • Advise line managers responsible for affected workers, making sure they know what the changes are and how to treat workers accordingly.

Written by

Richard Beschizza, Employment Solicitor at rradar