R the Independent Workers' Union of Great Britain v v The Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 13 November 2020 |
| Neutral Citation | [2020] EWHC 3050 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 November 2020 |
| Docket Number | Case No: CO/1887/2020 |
[2020] EWHC 3050 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Chamberlain
Case No: CO/1887/2020
and
Ijeoma Omambala QC and Cyril Adjei (instructed by Harrison Grant Solicitors) for the Claimant
Caspar Glyn QC and Tom Brown (instructed by Government Legal Department) for the Defendants and Interested Party
Hearing dates: 21 and 22 October 2020
Approved Judgment
Introduction
The Independent Workers' Union of Great Britain is a trade union. It was founded in 2012 and has about 5,000 members, who are predominantly low-paid, migrant workers and workers in the “gig economy”. By this claim it seeks declarations that the United Kingdom has failed properly to transpose into domestic law two EU Directives. The first is Council Directive 89/391/EC on the introduction of measures to encourage improvements in the health and safety of workers at work (“the Framework Directive”). The second was made under powers conferred by the Framework Directive and so is sometimes referred to as a “daughter Directive”: Council Directive 89/656/EC on the minimum health and safety requirements for the use by workers of personal protective equipment at the workplace (“the PPE Directive”).
The Claimant's central complaint is that the Directives require Member States to confer certain protections on “workers”, whereas the domestic legislation by which the United Kingdom has sought to transpose the Directives protects only “employees”. The Claimant says that this leaves those who are workers (within the meaning of the Directives), but not employees (as that term is understood in domestic law), without the protection EU law guarantees. This gap in protection has existed ever since the deadline for transposing the Directives, 31 December 1992, but the Claimant contends that the COVID-19 pandemic gives it a particular salience and significance. The workers whom the Claimant represents include taxi and private hire drivers and chauffeurs, bus and coach drivers, and van drivers. All these occupations have higher than average rates of death from COVID-19 and, the Claimant submits, particular needs for the kinds of health and safety measures the Directives require.
The Defendants are the Secretaries of State responsible for domestic legislation on health and safety at work. The Interested Party, the Health and Safety Executive, is the independent regulator for work-related health and safety in Great Britain. Together, the Defendants and Interested Party have two responses to the claim. First, they say that the Framework Directive contains a bespoke definition of “worker”, which extends only to those who are “employed by an employer”; and that this concept was properly transposed into domestic law by imposing obligations to protect “employees”. Second, they contend that even if this is wrong, the protections conferred by domestic law on workers who are not employees, though not identical to those conferred on employees, are sufficient to meet the minimum standards laid down by the Directives.
Permission to apply for judicial review was granted by Choudhury J on 19 June 2020. I heard oral argument from Ms Ijeoma Omambala QC for the Claimant and Mr Caspar Glyn QC for the Defendants and Interested Party at a remote hearing using videoconferencing on 21 and 22 October 2020. The arguments on both sides were presented with exemplary clarity.
The background to this claim
Between the beginning of March and 21 May 2020, the Claimant's legal department received around 144 queries regarding COVID-19 issues. Its Couriers and Logistics Branch received over 50 requests for assistance raising issues such as the lack of PPE (many couriers working for delivery companies have not been provided with any), the failure to implement social distancing whilst waiting for collections inside and outside restaurants and the failure to package COVID-19 samples correctly so as to protect medical couriers. There is evidence that some of the Claimant's members are scared by having to work without the PPE they consider they require.
The evidence includes a number of letters sent by the Claimant to businesses for whom its members work. There was a letter to a well-known private hire vehicle operator asking for sanitising and cleaning products and changes to the booking system and suggesting the provision of specially equipped vehicles with barriers between the front and rear seats; there was a request to a well-known courier business for regular cleaning or sanitising of vehicles; and there was a letter to a delivery business about contactless delivery and the need to provide gloves, hand sanitiser and masks.
A report by the Fairwork Project dated April 2020 entitled ‘The Gig Economy and COVID-19’, to which the Claimant contributed, made a number of recommendations including: regular, adequate, free provision of PPE – disinfectant, gloves and masks; installation of physical barriers between driver and passengers in all ride-hailing cars; contact free supply chains (both collection and delivery) for delivery workers; daily sanitisation of vehicles and upstream locations – warehouses, hubs et cetera; and free COVID-19 check-ups for workers and their families.
I mention all of this because it explains the importance, from the Claimant's perspective, of the legal issue before me. It is, however, important to underscore that the question I have to determine in this case does not depend on whether individual businesses, or businesses in general, are doing enough to protect their workers. As Mr Glyn submits, it may be that some of the businesses concerned are not doing enough to comply with their existing obligations under domestic law. Alternatively, it may be that some of the protections which the Claimant seeks would not be effective to protect against infection, or are not necessary, and so would not be required even if the Directives apply. None of that is for me to decide. I am concerned solely with the question whether the UK has properly implemented the Directives. That is a pure question of law.
EU law
The applicability of EU law in the implementation period
European Union law had and has effect in the United Kingdom by virtue of the European Communities Act 1972 (“the ECA 1972”). That Act was prospectively repealed with effect from “exit day” by the European Union (Withdrawal) Act 2018. The United Kingdom left the EU on 31 January 2020. However, by the European Union (Withdrawal Agreement) Act 2020, the ECA 1972 continues to have effect, subject to immaterial modifications, during the “implementation period”, which ends on 31 December 2020. The parties agree that this means that the court retains the power to grant the declarations sought, as it would if the UK had remained a Member State.
Treaty provisions
Since the inception of the European Economic Community, the European Commission has been empowered to promote co-operation between Member States in matters relating to labour legislation and working conditions, protection against occupational accidents and diseases and industrial hygiene, among other matters: see Article 118 of the Treaty Establishing the European Economic Community (“EEC”). In 1986, the Single European Act inserted a new provision, Article 118a, paragraph (1) of which required Member States to “pay particular attention to encouraging improvements, especially in the working environment, as regards the health and safety of workers and shall set as their objective the harmonisation of conditions in this area, while maintaining the improvements made”. In order to help achieve this objective, the Council was authorised by Article 118a(2) to adopt, by means of Directives, “minimum requirements for gradual implementation, having regard to the technical rules obtaining in each Member State”.
The conference at which the Single European Act was agreed made a number of declarations. One of them concerned Article 118a and was in these terms:
“The conference notes that in the discussions on article 118a(2) of the EEC Treaty it was agreed that the community does not intend, in laying down minimum requirements for the protection of the health and safety of employees, to discriminate in a manner unjustified by the circumstances against employees in small and medium-sized undertakings.”
In the French version of this text, “employees” is “travailleurs”.
The current version of Article 118a is in Title X of the Treaty on the Functioning of the EU (“TFEU”), headed “Social policy”. Title X begins with Article 151, which provides as follows:
“The Union and the Member States, having in mind fundamental social rights such as those set out in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers, shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion.
To this end the Union and the Member States shall implement measures which take account of the diverse forms of national practices, in particular in the field of contractual relations, and the need to maintain the competitiveness of the Union economy.
They believe that such a development will ensue not only...
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