News - OSC instructed in challenge to failure to extend H&S protections to workers during Covid-19 pandemic

Employment & Discrimination - Ijeoma Omambala QC, Cyril Adjei

Ijeoma Omambala QC and Cyril Adjei are instructed by Harrison Grant LLP for the claimants, who are the Independent Workers’ Union of Great Britain (IWGB), in a challenge by way of judicial review of the UK Government’s failure to correctly transpose EU health and safety protections into UK law. The claim was issued on 22nd May 2020.

The IWGB’s members, who are mainly low paid, migrant workers and workers in the gig economy have been carrying out vital work throughout the pandemic. Carrying out this work without the implementation of protective measures has exposed them to the risk of contracting Covid-19 and of then passing this on to their families.

These workers should have had the benefit of the legal protections as regards their health and safety that are set out under EU law. More specifically, the EU’s Framework Directive 1989 and the PPE Directive 1989 both contain important health and safety protections.

Under EU law the term “worker” is broader than the UK’s concept of an employee. The UK claims to have transposed the obligations set out in EU in a range domestic legislation, in particular:

  • s.2(1) of the Health and Safety etc at Work Act 1974 – the obligation to ensure the health and safety of employees unless this is not reasonably practicable;
  • ss.44 of the Employment Rights Act 1996 – the prohibition against subjecting an employee to detriment in health and safety cases;
  • ss.100 of the Employment Rights Act 1996 – the prohibition against dismissing an employee in health and safety cases;
  • reg.4 of the Personal Protective Equipment Regulations 1992 – the obligation to provide suitable PPE to employees who may be exposed to a risk to their health and safety while at work.


In the UK, these health and safety protections are only stated to apply to employees, when under EU law they should also apply to workers as defined under EU law.

The failure to properly transpose EU law into UK law is unlawful. The failure has also meant that IWGB’s members who have worked on the frontline during the Covid pandemic have been unable to assert their full legal rights in order to ensure that their health and safety at work is protected.

Jason Moyer-Lee, IWGB General Secretary says: "As the Government looks to ease the lockdown in the midst of the pandemic, health and safety at work has never been more important. ….The UK is already compelled by EU law to extend health and safety protections to workers; it's a shame the Government would rather litigate than comply."  

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