In the landmark case The Independent Workers’ Union of
Great Britain, R (on the application of) v The Secretary of State
for Work and Pensions & Ors, the Court found firmly in
favour of a union representing gig economy workers.
The decision will give much welcomed health and safety
protection to workers within the “gig economy.” It means
workers are entitled to the same protection as employees against
suffering detriment if they take steps to protect themselves by
refusing to work when faced with the serious and imminent danger of
being exposed to COVID-19. Further, they will be entitled to be
provided with any necessary Personal Protective Equipment
We explore the case in detail below, looking at these
developments and what they could mean for employers moving
Background and summary of the case
Employment protection legislation seeks to distinguish between
dependent and independent labour. At one end of the employment
status spectrum are ’employees’ who are afforded the
greatest level of protection. At the other end of the spectrum are
the self-employed who are not entitled to any employment protection
rights. Somewhere in the middle are ‘workers’ who are
entitled to some valuable employment rights including National
Minimum Wage, holiday pay, discrimination and whistleblowing
While all employees are also workers, not all workers are
employees under the Employment Rights Act 1996 (ERA). Under section
230(3)(b) of the Employment Rights Act 1996 to establish that an
individual is a ‘worker’: (1) the individual must be
working under a contract in which they agree to personally provide
work; and (2) the ’employer’ must not be a client or
customer of any profession or business undertaking carried on by
the individual. Individuals who fall within this definition are
often referred to as “limb (b) workers”.
Many “gig economy” workers are classed as limb (b)
workers, as opposed to employees. Examples of limb (b) workers
include: some courier drivers and cyclists.
The Independent Workers’ Union of Great Britain (IWGB),
which represents around 5,000 workers, sought a judicial review
arguing that the UK government had failed to transpose into UK law
important EU health and safety provisions. They highlighted that
many of these limb (b) workers have worked throughout the COVID-19
pandemic, exposing themselves to a higher risk of catching the
virus. The IWGB asserted there is a particular need for the kind of
health and safety measures that the EU health and safety provisions
Many of these workers had raised concerns about not being given
PPE by their employers. They said that the lack of protection in UK
law meant that they ran the risk of being suspended or terminated
if they took steps to protect themselves by stopping work.
The Court found in favour of the IWGB and concluded that the UK
has failed to grant workers in the gig economy the rights they are
entitled to under European directives on safety and health at work.
The judgment means that workers in the gig economy are entitled to
the same health and safety rights as employees, including being
provided with PPE by the business they are working for and having
the right to stop work in response to serious and imminent danger.
The Government must now take steps to ensure workers have the same
protection as employees.
What does this mean for employers?
Under UK health and safety law, employers have a duty to ensure
– so far as reasonably practicable – that their employees and other
people who might be affected by their business, are not exposed to
risk to their health, safety or wellbeing from their activities.
Breach is a criminal offence by the employer. If found guilty, the
employer will face a fine. Employers cannot insure for these fines
and it is also not legally possible to contract out of the
From an employment law perspective, this ground-breaking
decision means that, if they haven’t been doing so already,
employers will need to ensure these gig economy workers have the
right to refuse unsafe work and are given PPE as necessary.
Although we are yet to receive official guidance from the
government on amending the domestic legislation, it is important to
prepare for this change and to acknowledge that as things currently
stand, this case and any amended legislation will continue to apply
after the UK has left the EU.
What steps need to be taken?
Employers should consider the following:
- Altering workers’ contracts to
make their rights clear;
- Ensuring that company policy and
procedure on the treatment of workers is compliant;
- Updating risk assessments and
procedures accordingly to ensure that necessary control measures
are applied to workers, as well as employees, and that workers are
provided with PPE as necessary; and
- Briefing line managers who are
responsible for affected workers, so as to ensure that they are
up-to-date on the changes and that they treat workers
Next steps in the absence of government guidance
The UK Government will be expected to amend the relevant
domestic legislation to ensure that such workers have the same
protections as employees in this respect. Until they do so, an
affected worker may bring a claim for damages against a member
state for any loss suffered by them as a result of the
government’s failure to implement or breach EU law (these are
known as Francovich claims).
The ability to make Francovich claims will be lost after the end
of the transition period (31 December 2020), as they are excluded
from the scope of retained EU Law. There are a few exemptions to
this, most notably parties should be aware that there is a two-year
window after exit day for bringing a Francovich claim in respect of
any violation of EU law occurring before the end of the transition
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