The Independent Workers' Union of Great Britain, R (on the application of) v The Secretary of State for Work and Pensions & Ors

The Framework Directive’s definition of “worker” has an autonomous EU-law meaning. Subject to the express exclusion of domestic servants, it includes persons who perform real and genuine services for, and under the direction of, another person in return for remuneration, where that person has responsibility for the undertaking or establishment.

Domestic legislation protecting employees therefore did not fully transpose the Directives. Section 3 of the Health and Safety at Work etc. Act 1974, together with related provisions, was sufficient for the general duties in Articles 5(1) and 6(1) of the Framework Directive. It was insufficient for the specific protections required by Article 8(4) and the second paragraph of Article 8(5), and for Article 3 of the PPE Directive, so far as limb (b) workers were concerned.

The claimant trade union sought judicial review declarations concerning the transposition of Council Directive 89/391/EC and Council Directive 89/656/EC. It argued that UK legislation protected employees but failed to protect “workers” within the autonomous EU-law meaning of that term, including limb (b) workers under section 230(3)(b) of the Employment Rights Act 1996.

The defendants relied on the bespoke definition in Article 3 of the Framework Directive and, alternatively, on protections provided by the Health and Safety at Work etc. Act 1974, the Management of Health and Safety at Work Regulations and other legislation. The issues were whether the Directives covered limb (b) workers and, if so, whether domestic law provided equivalent protection in respect of the general duties, serious and imminent danger, and personal protective equipment.

1. Meaning of worker. The bespoke definition in Article 3 of the Framework Directive was intended to have a single EU-wide meaning. The words “employed”, “employer” and “employment relationship” were not confined to the domestic concept of a contract of employment. Subject to the exclusion of domestic servants, “worker” included anyone falling within the autonomous EU-law definition used in the free-movement and equal-pay authorities. An employer was a person for whom, and under whose direction, services were performed and who had responsibility for the undertaking or establishment.
2. General duties. The broadly drawn duties in Articles 5(1) and 6(1) were implemented for limb (b) workers by section 3 of the Health and Safety at Work etc. Act 1974, taken with the other relevant statutory provisions. The omission of “welfare” from section 3 did not create a defect because the Directive required protection of health and safety, not welfare as a distinct concept. Sections 2 and 3 imposed substantively similar health and safety obligations.
3. Serious and imminent danger. Regulation 8 of the Management of Health and Safety at Work Regulations properly implemented the requirement enabling workers to stop work and proceed to safety. However, sections 44 and 100 of the Employment Rights Act 1996 protected employees from detriment or dismissal for taking appropriate protective steps, whereas section 47B protected limb (b) workers only for making protected disclosures. That was not equivalent protection. The United Kingdom had therefore failed to implement Article 8(4) and the second paragraph of Article 8(5) for limb (b) workers.
4. Personal protective equipment. The PPE Directive imposed more specific requirements than the Framework Directive. The general duty in section 3 of the 1974 Act could not substitute for specific implementing legislation. Regulation 4(1) of the Personal Protective Equipment at Work Regulations protected employees only, and the limited application of the COSHH Regulations did not cure the wider gap. Article 3 of the PPE Directive was therefore not properly implemented for limb (b) workers.
5. Disposition. The claim succeeded in part. A declaration was granted in substantially the proposed terms. The defendants were ordered to pay the claimant’s costs, capped at £30,000 including VAT, with an interim payment of £20,000 including VAT.

First-instance judicial review in the Administrative Court. Permission was granted by Choudhury J on 19 June 2020. The claim was determined by Mr Justice Chamberlain.