The claimant, a trade union, applied to the High Court for a declaration that the UK had failed to properly transpose Article 8(4) and Article 8(5) of the EU Health and Safety Framework Directive 89/391 on the basis that the UK only covered employees and not others with different employment status. These Articles allowed for workers to leave their workstations where there is serious, imminent, or unavoidable danger without being placed at a disadvantage.

The Directive required certain protections for ‘workers’ which was defined within Article 3 of the Directive as:

‘…any person employed by an employer, including trainees and apprentices but excluding domestic servants’

The claimant, whose membership was predominantly low-paid workers and those within the ‘gig economy’ stated that a gap had developed as a result of the supposed transposition of the directive into UK law.  Whilst this gap had existed since the early 90s, the claimant brought the application now considering the higher-than-average rate of death suffered by its membership as a result of Covid-19.  The claimant’s argument was that the construction of ‘worker’ within the Directive was to include all who fell within the autonomous meaning, yet the defendant stated that it only extended to those ‘employed by an employer’.

The High Court held that there was no single definition of a worker within EU law, but it varied depending on its application.   In the CJEU case of Pfeiffer it was held that there should be a broad interpretation to encourage the improvement of health and safety of workers at work.  Accordingly, the ‘workers’ protected including all those who under direction performed services which would include those classified as ‘workers’ in domestic law.  For this reason, the obligations in the Directive had not been properly transposed into domestic law.

The High Court considered whether there was sufficient protection in domestic law.   The High Court examined the Health and Safety at Work etc. Act 1974 which when taken together with other domestic legislation provided sufficient protection. Therefore, when the domestic legislation, as a whole, was interpreted in line with the directives as per the case of Marleasing [1990] then the UK law could be seen as complying.  However, it was held that Article 8(4), Article 8(5) and Article 3 of the PPE Directive had not been properly brought into UK law to protect workers as they would be classified under the Employment Rights Act 1996 (Employment Rights (NI) Order 1996.

Practical Lessons

The cases that go towards employment status have a huge bearing on the rights that an individual will get.  This is yet another example, but this decision will close the gap when it comes to protections that have been given as a result of EU law when it comes to the consequences (or lack of) when an individual has to leave their workstation as a result of being in imminent danger.  It must be noted that this decision did not say that particular circumstances allowed for this action, abut it just related to the interpretation of ‘worker’ within the Directive and how that should be applied in domestic law.
https://www.bailii.org/ew/cases/EWHC/Admin/2020/3050.html