UK has failed to transpose EU law since 1992

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?