On the 21 October 2020, the IWGB (Independent Workers’ Union of Great Britain) presented its argument before the High Court of England and Wales to have the recognition that the UK government has failed its obligation to transpose health and safety directives (in particular directive 89/391/EEC and directive 89/656/EEC) from EU law into UK law.
The IWGB brings this action to protect its members’ interest, most of them being “gig workers”, such as Uber or Deliveroo drivers. The IWGB emphasized that these workers, who have shown to be essential during the first wave of the Covid-19 pandemic, have been denied basic fundamental safety rights by being “at the mercy” of the platforms to have access to personal protective equipment (PPE). Therefore, this case could extend health and safety rights to hundreds of thousands of workers.
The hearing revolved around two questions first, where the UK fails to implement EU Law considering that UK health and safety laws only protect employees, excluding the “limb (b) worker”. Second, whether the existing provisions available in domestic law provide an equivalent level of protection for such workers’ category. In the UK, “limb (b) workers” applies to a category of self-employed – also understood as “dependent contractor” - who are entitled to basic rights such as minimum wage and the application of working time regulation. Therefore, recognizing that these workers fall within the scope of protection of the framework directive would considerably extend the scope of the OSH (occupational safety and health) legislation in this country.
To determine the scope of application of the framework directive, the focus has been on the interpretation of the definition of worker in article 3 of the directive. This hearing deals with the core of the directive 89/391/EEC and questions the margin left to the Member States by determining where the European minimum standards lie.
The IWGB advocated for a purposive approach of/to the definition of workers and emphasizing the preventive aim of the directive. The IWGB stressed the importance of the employer’s definition. According to their counsel, Ijeoma Omambala, this definition has two elements – (1) the employment relationship with the worker, and (2) the responsibility for the undertaking and/or establishment. Therefore, an organization such as Uber or Deliveroo would have the responsibility of the undertaking. Thus, they should be responsible for the general principles of prevention of health and safety applicable to both employees and workers. It would mean that these platforms have the responsibility to assess and evaluate the risks and take collective and individual measures to eliminate or reduce the risks. The platforms would also be responsible for providing the appropriate PPE to the workers (e.g., the drivers) without financial burden for them. It would also mean that these drivers would be able to exercise their right to leave work in case of serious and imminent danger (art.8 of the dir.89/391/EEC).
The IWGB’s counsel, Ijeoma Omambala, used an analogy to answer the defendant representing the UK government who argued that the domestic health, safety and welfare (HSW) has a broad definition of employee and provide equivalent protection for workers. The analogy is that these provisions are a safety net for these workers, but health and safety “should not be about having a safety net in cases where workers fall. Health and Safety is being sure that they do not fall in the first place”. With this statement, Ijeoma Omambala underlined the crucial point that the framework directive is primarily about prevention and secondly compensation. Preventing the risk for workers at work is the primary aim of the framework directive.
In times of changes in the way work is performed, of increase of the gig economy, the decision of the UK Court ruling whether there has been an infringement can be a major opportunity to improve workers’ health and safety effectively.
IWGB President Henry Chango Lopez said: “For far too long, the UK government has turned a blind eye to the abuses of gig economy employers, allowing them to make up the rules as they go along while ignoring the safety of their staff. With this case we will start to reclaim some of the basic rights that are being routinely denied to these workers”. The future decision could be a recognition of health and safety as essential rights for the workers, regardless of their status.
Photo credits: Zolnierek