0370 270 6000

Workers' health and safety

20 November 2020

Please note: the information contained in this legal update is correct as of the original date of publication.

The coronavirus pandemic has shone a large spotlight on issues of health and safety at work, and the steps that individuals can take if they believe their employer is not providing a safe workplace. It has also highlighted a discrepancy in wording in the UK legislation as to the protection offered to workers, compared to employees.

In a case brought by the Independent Workers’ Union of Great Britain against the Secretary of State for Work and Pensions and the Secretary of State for Business, Energy and Industrial Strategy, the Union argued that European health and safety provisions, and associated provisions relating to PPE, had not been correctly implemented into UK law as the protections were not wide enough to cover workers.

The High Court considered the various definitions of “worker” and “employee” under EU and national law and concluded that the European Directives relating to health and safety and the provision of PPE apply to all workers, save for domestic servants, and not just employees.

The secondary argument run on behalf of the Secretaries of State was that although some UK provisions referred to employees only, there were other applicable provisions within UK law which provided comparable protection to workers, and that those alternative provisions were sufficient to implement the Directives.

In respect of the Health and Safety at Work Act 1974, whilst there are provisions which are specific to employees, there are also separate provisions which relate to anyone who is not an employee but who may be affected by the way in which the employer runs his undertaking. This would therefore include workers. The main difference between the two sets of provisions is that, in respect of employees, the duty relates to health, safety and welfare, whereas for non-employees, the duty relates to health and safety only - welfare is not mentioned. However, given that welfare is not a requirement of the European Directives, the High Court felt that the protection offered to workers was comparable.

Under s.44 of the Employment Rights Act 1996, employees have a right not to be subjected to a detriment for certain health and safety reasons (see our previous update on health and safety issues here for further information). Counsel for the Secretaries of State argued that the “whistleblower” provisions provided comparable protection for workers as protected disclosures can include disclosures about health and safety issues. This argument was not accepted by the High Court – the Directives required workers to be protected regardless of whether they made a disclosure. There was therefore a finding that UK law had not correctly implemented EU law in respect of workers.

By contrast, s.100 of the Employment Rights Act 1996 (which protects employees from dismissal), did not need to be extended to workers – workers do not enjoy protection from unfair dismissal within the UK and so there was no obligation to confer protection specifically for health and safety reasons.

Lastly, the High Court considered the issue of the provision of PPE. It is worth highlighting that the Court was not considering any individual circumstances – and in particular, was not considering whether any specific individual should have been provided with PPE to protect against Covid-related risks. Instead, it was simply considering whether the European Directive in respect of PPE had been correctly implemented into UK law. It held that it had not – whilst a failure to provide PPE may also constitute a breach of the Health and Safety at Work Act 1974, the general obligations under that Act were not deemed to be sufficient to comply with the specific PPE obligations under European law.

This decision will have important ramifications for a significant number of workers, particularly those within the gig economy (such as taxi drivers, or those dealing with deliveries) on whom heavy reliance has been placed during the coronavirus pandemic.

A full copy of the judgment can be found here.

Training and events

11Oct

Autumn Regional HR Forums - Birmingham Microsoft Teams

We are pleased to invite you to join us at one of our next Regional HR Forum. The forums are aimed at those who lead the HR function in schools and academies across the nation.

View event

12Oct

Autumn Regional HR Forums - Nottingham Microsoft Teams

We are pleased to invite you to join us at one of our next Regional HR Forum. The forums are aimed at those who lead the HR function in schools and academies across the nation.

View event

Coronavirus support

We are helping across business, health, education and government sectors:

Focus on...

Blogs

Revoking and reforming EU law

The Government has published the Retained EU Revocation and Reform Bill which, if passed, provides for the revocation of all “EU-derived subordinate legislation” (i.e. UK statutory instruments which were introduced to implement EU law) and retained direct EU legislation on 31 December 2023, unless legislation is specifically introduced to save them.

View

Legal updates

Government pension's consultation on the reporting of climate change risks

The Department for Levelling Up, Housing and Communities (DLUHC) has published a consultation on proposals to require Local Government Pension Scheme (LGPS) administering authorities (AAs) in England and Wales to assess, manage and report on climate change risks.

View

Blogs

Gender equality

Randstad has published a report on gender equality in the workplace based upon survey responses from 6,000 workers within the construction, education, healthcare and technology sectors. Whilst legislation relating to sex discrimination has been around for over 45 years, nearly three quarters of female workers surveyed reported that they had either experienced or witnessed inappropriate behaviour or comments from male colleagues.

View

Employment Law – Harpur Trust v Brazel – Implications for schools webinar

On 20 July 2022, the Supreme Court issued its long-awaited judgment in the case of Harpur Trust v Brazel, upholding the decision of the Court of Appeal. For those of you familiar with this case, you will know that it concerns the statutory leave requirements for part-time and part-year workers. For schools and academies whose workforce consists of a variety of types of part-time and part-year workers, this case is one that must be understood before any changes are applied. Come and join Emma Hughes, Head of HR Services as she puts questions to Ian Deakin, Employment Partner, and Sarah Linden, Senior Associate.

View

The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

Mailing list sign up

Select which mailings you would like to receive from us.

Sign up