The High Court has recently decided that, to comply with EU law, important provisions in the Employment Rights Act which protect employees from victimisation on certain health and safety grounds should also extend to workers.
While most general health and safety protections apply to all individuals working in the workplace, one key provision – section 44 ERA – on the face of it applies only to employees. That section protects them from being subjected to a “detriment” in a range of situations related to health and safety. These include where they leave the workplace because of a “serious and imminent” danger, or take “appropriate” steps to protect themselves or others from such danger.
Health and safety issues have risen to prominence during the pandemic for obvious reasons. This prompted the Independent Workers' Union of Great Britain to bring judicial review proceedings against the Government, seeking a declaration that section 44 ERA (among a number of other provisions) did not correctly implement the underlying EU Health and Safety Framework Directive.
The High Court has now confirmed that section 44 should be read as extending not only to employees, but to other individuals engaged under a contract to do work personally. These are commonly known as “limb (b)” workers after the relevant part of the definition of worker in the ERA.
Looking beyond health and safety law, this case is another example of the fact, that as general rule, EU employment law tends to have a broader application in the workplace than the original UK legislation that implemented it. For example, last year an employment tribunal ruled that our TUPE regulations should be read as extending to limb (b) workers as well as employees.
In both contexts, however, even after these rulings, non-employee workers will still end up with more limited protection than employees in a comparable situation, simply because their general employment protection rights under our domestic law are less extensive. It is also worth adding that both these decisions could still be challenged in our appellate courts.