In IWGB v DWP and BEIS (2020) the IWGB union challenged the UK government over the question of whether it had adequately implemented EU law, as found in section 44 of the Employment Rights Act 1996 (ERA), to protect the healthy and safety of UK workers.

The issue was that the ERA specifically provided protection against detriment in employment for “employees”. The ERA has needlessly complex employment protections which differentiates between employees, who are protected from the rights in the ERA concerning rights such as unfair dismissal, and from those workers who have the right to EU law protection (what are called limb (b) workers – taken from s230(2)(b) of the ERA). S.44 of the ERA gave employees the right not to be subjected to a detriment because they refused to work when they reasonably believe themselves to be in serious imminent danger. Historically, except in some sectors, this is not has been commonly relied upon but the Covid-19 pandemic which has brought the need for such protection into sharp focus, and educating union members of the rights they hold under s.44 has been a key part of many unions responses to the pandemic.

Section 44, while a freestanding right, is (at least up to now) best understood in conjunction with section 100 of the ERA. Section 44 protected the employee from a detriment for exercising their rights. “Detriment” is significant because section 44(4) of the ERA expressly ruled out dismissal being a detriment: “[s.44] does not apply where the detriment in question amounts to dismissal.”  So, an employee who as a result of exercising their s.44 right is immediately, demoted, refused pay/holiday, subjected to a disciplinary investigation or similar has been subject to a detriment and could bring employment tribunal proceedings alleging a breach of their rights.

The difficulty, of course, is that while a worthwhile right the real risk to the employee who has relied upon s.44 is that they will be called into an office and dismissed summarily, quite possibly without any investigation or process. Because the meaning of “detriment” in s.44 does not include dismissal this places the employee into a quandary – do they have any real remedy (this is especially relevant if the employee has not been employed continuously for two years as they will have no other right to claim unfair dismissal)?

Fortunately, and sensibly, an employee has an additional distinct right in the ERA under s.100 which means that any dismissal because an employee exercises their s.44 right is automatically unfair. So, even though dismissal is not a detriment in s.44 they have a separate meaningful remedy to include both dismissal and detriment which allows a finding of automatically unfair dismissal.

As I wrote previously (at the time the judgement IWGB case was undecided) the fact that this right in both s.44 and s.100 was limited to employees only was a matter of gross injustice; with non-employee based employment models proliferating across the UK the exclusion of such a large proportion of workers from these protections was indefensible and, in a pandemic context could even place the public at greater risk as individuals were compelled to work in unsafe conditions and increase the risk of viral infections.

IWGB were successful in their arguments that the UK government had failed to implement EU law and had therefore failed to provide adequate health and safety protection to workers (the limb B’s). This was a huge decision and one for which the thousands upon thousands of gig economy workers owe IWGB a huge debt of gratitude. As a result of this small union’s case the Government has laid the The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021. The effect of this Order is to amend s.44 ERA to replace all references to employees in s.44 with workers and this change will come into effect on 31 May 2021. From that date any worker will have protection under domestic law under s.44.

As good new as this is, and it undoubtedly is good news, the Order only solves one half of the problem. An employee will continue to be able to claim that they have been subjected to a detriment and also, if they’re dismissed, claim that they were unfairly dismissed. But the rights of workers whole extended are only extended to protect from detriment, not dismissal. It remains the case a worker dismissed because they exercised their s.44 rights will have no remedy under the ERA to challenge their dismissal.

IWGB had sought just such a protection but, the High Court rejected this explaining their decision

The Framework Directive nonetheless requires that she be protected from disadvantage for having taken the steps required to protect herself or others. Sections 44 and 100 of the ERA 1996 provide that protection, but only if the worker is an employee. Section 47B, which applies to limb (b) workers as well, is concerned with something else: disadvantages visited on workers because of what they have said, not because of what they have done. It does not provide protection equivalent to s. 44. In this respect, the UK has failed properly to implement the Framework Directive as respects limb (b) workers.

I have not overlooked the words at the end of Article 8(4) of the Framework Directive: “in accordance with national laws and/or practices”. In my judgment, these words mean that the mode or mechanism by which Member States are to confer the protection required on workers may vary according to national laws and/or practices; but the existence of such protection for all whom the Framework Directive regards as “workers” is a requirement that applies to every Member State. It would be perfectly possible to confer the necessary protection on limb (b) workers by extending the protections conferred on employees by s. 44 to cover them without undermining the structure of UK employment law – just as the ambit of the whistleblowing provisions has been extended to limb (b) workers by s. 47B.

The absence of protection for limb (b) workers against unfair dismissal is, by contrast, a structural feature of UK employment law. Nothing in Article 8(4) or (5) requires Member States to confer protection from unfair dismissal on persons who, under national law, enjoy no such protection.

Para 126-128 IWGB v DWP and BEIS (2020).

One of the key arguments in the IWGB case made by the Government is that any report of unsafe conditions was also likely to be a protected disclosure (whistleblowing) for which workers to have protections more in keeping with employees so to avoid ambiguity over protection for dismissal itself it may be sensible, where it fits the facts, for a worker to complain under both s.44 and whistleblowing.

But for a system that in which many workers will be forced to pursue on their own this is needlessly complicated. I do hope unions continue to much for a complete alignment of worker and employee rights and, of course, the best course of action will be for all workers to join a union and, if one is already active in your workplace joint that one.

Despite the uncertainty however three cheers for the IWGB!

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