Beyond status: the long road towards effective health and safety rights for on-demand workers – by Aude Cefaliello

Image by wal_172619 from Pixabay

Over the past months, there has been an alignment of stars between two major court rulings that have the potential to reshape the working lives of on-demand workers and the business model of platforms.

The first decision is the Uber BV v Aslam [2021] UKSC 5 (‘Uber (SC)’) judgment of the Supreme Court – recognising the ‘limb (b)’ worker status of a number of Uber drivers. Here the Supreme Court took a ‘purposive’ approach to the interpretation of the relevant employment law statutes. Uber’s reaction was to recognise the limb (b) worker status of all of its drivers, paying minimum wages, applying the Working Time Regulations 1998 (albeit in a questionable way), and under some conditions, granting access to pension schemes. Aside from this being a very narrow implementation of the Uber judgment, it also neglects a series of other fundamental rights attached to worker status, as demonstrated by a second judgment laid down just weeks before.

Indeed, in November 2020, Independent Workers of Great Britain (IWGB) won a judicial review claim against the United Kingdom (UK) Government (IWGB v SSWP and Others) – effectively establishing that the UK Government had failed properly to implement Articles 8(4) and 8(5) of Directive 89/391/EEC (the so-called Framework Directive) and Article 3 of Directive 89/656/EC (on Personal Protective Equipment – PPE). The direct effect of this ruling has been to ensure that limb (b) workers have access to PPE and can safely withdraw from work in case of serious and immediate danger without fearing any less favorable treatment. These changes are enacted in the Employment Right Act 1996 (Protection from Detriment in Health and Safety Cases)(Amendment) Order 2021, which came into force the 31^st May 2021. It is an important step forwards for better Occupational Safety and Health protection, however OSH law comprises much more than that.

This blog post focuses on the broader implication of the crucial last sentence of the High Court (HC) judicial review:

“In UK Law [the workers’ right to leave their workplace in case of serious and imminent danger, and employers’ obligation to provide workers with PPE] have not been extended to workers as defined in s.230(3)(b) of the Employment Right Act 1996, whereas the definition of “worker” in article 3 of the framework directive (which also applies to the PPE Directive) includes such workers”.  

1. Clarification of the individual dimension of OSH for limb (b) workers

During the HC proceedings, Chamberlain J. considered the proposition, put forward by the Secretary of State for Work and Pension (SSWP), that UK law provides equivalent OSH protection to employees and to limb (b) workers and does not fail to implement Article 5 of the Framework Directive.[1] The implementation of OSH employers’ obligations can be found in several pieces of domestic law. The main one is the Health and Safety at Work Act 1974 (HSW Act 1974). Section 2(1) provides the general duties of employers to ensure, as far as is reasonably practicable, the health, safety, and welfare at work of all his employees. The definition of ‘employee’ at s.53 of the HSW Act 1974 does not include limb (b) workers. Therefore, these provisions are supplemented by s.3(1) of the HSW Act 1974, adding that every employer has a duty to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not exposed to risks to their health or safety. Similarly, the Management of Health and Safety at Work (MHSW) Regulations 1999, Regulation 3 imposes an obligation on every employer to undertake an assessment of the risks to the health and safety of his employees and of persons not in his employment arising out of or in connection with the conduct by him of his undertaking. Regulation 12(3) of MHSW obliges employers to provide employees and other persons with information and instructions about risks to health and safety.

This combination of statutes and regulations creates a safety net applicable to the limb (b) workers in terms of OSH: the employer is responsible for their health and safety and should evaluate potential risks caused by the way that it conducts its undertaking.

Therefore, any platform hiring limb (b) workers should assess and evaluate the risks to the health and safety of the on-demand gig workers – in particular those risks caused by the conduct of the undertaking. Considering that section 2(1) of the HSW Act 1974 and Schedule 1 of the MHSW Reg. 1999 are implementing Articles 5 and 6 of the Framework Directive and provide an equivalent level of protection in domestic law, it means that platforms have to evaluate the risks but are also under a duty to combat the risks at source; adapting the work to the individual, especially as regards the choice of the working methods, adapting to technical progress; developing a coherent overall prevention policy which covers technology, organisation of work, working conditions, social relationships and the influence of factors related to the working environment; giving collective protective measures priority over individual protective measures and; giving appropriate instructions to the workers. These are the general principles of prevention applying to workers, which should therefore apply to limb (b) workers (Art. 6 of the Dir. 89/391/EEC).

Indeed, if we consider the platform-based delivery sector (represented by companies such as Deliveroo, Foodora, Glovo, UberEats, etc.), common hazards related to the tasks performed are well known and well characterized. Because riders execute their work on the road, mainly by bikes or motorbikes, they are subject to an increased risk of hazards linked to traffic accidents and road safety, alongside the possibility of working in extreme weather conditions. The “novelty” of the work provided by the platform is the presence of algorithmic management, which adds an additional layer of risks. EU-OSHA reported in 2019 that:

“Pervasive monitoring allowed by AI-supported digital monitoring technologies can have a negative impact in particular on workers’ mental health. (…) The use of data for example to reward, penalise or even exclude workers could lead to feelings of insecurity and stress”.

A report published by the INRS in 2018 illustrated the particular psychosocial risks that riders have to face due to their working conditions. However, this report also shows that it is not an inevitability but a choice: artificial intelligence is a tool, and the data gathered could be used as part of a collective and overall prevention plan.

Therefore, the combination of the Supreme Court ruling and the IWGB decision, if understood broadly and with the aim to provide equivalent (and adequate) protection to limb (b) workers, could already indicate the need for a change in the approach taken to OSH obligations as applicable to the platform. The clarification of the legal duties combined with reference to the framework directive could lead to a shift from a compensatory approach to the development of real prevention.

Still, this approach is individualistic (and to some extent unilateral) and does not create any space for the limb (b) workers’ voices or participation – leaving the crucial collective and participatory dimension of OSH (illustrated with the employer’s obligation to consult workers and/or their representatives at art.11) absent at the domestic level.

2. The Collective and participatory dimension of OSH and limb (b) workers.

The Framework Directive provides essential provisions on the workers’ participation and their representation with health and safety representatives. The best example is Art. 11 of the Directive on Consultation and participation of workers. Art. 11(1) provides that employers shall consult workers and/or their representatives and allow them to take part in discussions on all questions relating to safety and health at work. This presupposes the consultation of the workers, the right of workers and/or their representatives to make proposals, and balances participation in accordance with national laws and/or practices.This consultation should encompass any measure which may substantially affect safety and health. A broad understanding of health and safety can lead to mandatory consultation of the health and safety representatives when there is a significant organisational change.

If we take the example of on-demand platform workers, a change in the programming of the algorithm or software collecting the data on the workers’ performance to allocate shifts could lead to stress (or psychosocial risks) and should therefore be discussed with the health and safety representatives.

Considering that limb (b) workers fall within the scope of Article 3 of the Directive, then all the provisions of the Directive 89/391/EEC should apply to them. This includes the right to be consulted but also to have health and safety representatives (Art. 7(1) Dir. 89/391/EEC). However, domestic law under its current form implements these rights only for employees and still excludes limb (b) workers.

Indeed, Section 2 of the HSW Act makes a reference to the appointment by recognised trade unions of safety representatives from amongst employees, and those representatives represent the employees in consultations with a view to co-operating effectively in promoting and developing measures to ensure the health and safety at work of the employees, and in checking the effectiveness of such measures. The original regulations which are still in force under that section, the Safety Representatives and Safety Committees Regulations 1977, are restricted to consultation with safety representatives appointed by a recognised union from among the employees they represent and in relation to measures which affect the health and safety of employees represented (Regs 3, 4A), Those Regulations are  complemented by the Health and Safety (Consultation with employees) Regulations 1996 (Reg.3) that provides the possibility for the employer to directly consult  employees not represented by a recognised union on matters relating to their health and safety at work and, in particular, regarding the introduction of any measure at the workplace which may substantially affect the health and safety of those employees.  

As of now, there are no equivalent provisions applicable to limb (b) workers. Therefore, I would argue that the UK Government failed to properly implement the Directive 89/391/EEC on that ground too. One can argue that reference to the Directive might not be relevant anymore after the exit of the UK from the EU; but consultation with workers on OSH was important during the adoption of the HSW Act. Participation and workers’ involvement in the co-development of the preventive plan is at the heart of both Directive 89/391/EEC and the HSW Act 1974. The Robens Report, which was the foundation of the HSW Act 1974, was built on the basic enduring principle that the responsibility for acting lies with those who create the risks and those who work with them.^[2] Therefore, not allowing limb (b) workers to participate in the OSH prevention is not only against the purpose of the framework directive (the cornerstone of the EU OSH Legislation) but also against the core principle of the UK OSH ideology. Thus, what should and could be done to provide equivalent and adequate protection to the limb (b) workers?

3. How to guarantee the full application to the general principles of prevention to limb (b) workers?

Based on the existing domestic law, it seems possible to enhance the collective aspect of OSH to extend to limb (b) workers. Indeed, the definition of ‘worker’ in s. 296 TULRCA 1992 is almost identical in terms to limb (b) workers (as defined in s.230(3) of Employment Rights Act 1996) . This means that trade unions, on behalf of ‘workers’ can use the statutory machinery to seek recognition for collective bargaining purposes under Schedule A1 TULRCA 1992. The ‘trade dispute’ defence to tort actions by employers in s 219 TULRCA 1992 is linked to disputes between workers and their employer, giving some protection for collective voice through strike action. The recognised trade union could bargain to appoint health and safety representatives following the same rules that are already applicable to employees. Alternatively, amendments could be made to the 1977 Regulations to ensure that the scope of consultation extends to measures which affects limb (b) workers and to the Health and Safety (consultation with employees) Regulations 1996 (Reg.3) to require  the direct consultation of the limb (b) workers where no union representatives are appointed. A combination of these methods would ensure legal support to arrangements secured through collective bargaining and collective action, in recognition of the fundamental rights at stake in OSH.

Only reforms allowing limb (b) workers to have health and safety representatives could lead to real prevention at the workplace. David Walters has previously demonstrated that direct consultation with employees does not lead to real cooperation, and workers’ representation is preferred. According to him, the most efficient way to reach a balance of power is via the appointment of health and safety representatives appointed by recognized trade unions. A similar rationale would apply to other workplaces with limb(b) workers.

The remaining question would be: how do we initiate this legal change? One way could be via strategic litigation. Nevertheless, there is an additional question that needs to be addressed; how to litigate based on an EU Directive after Brexit?

Despite the exit of the UK from the EU ending the duty to implement EU Directives and the doctrine of direct effect for provisions of Directives not “of a kind” yet recognized by the ECJ to have direct effect (see s.4 European Union (Withdrawal) Act 2018), the duty to interpret domestic law to accord with the Framework Directive remains: see s.5 to the 2018 Act and the Explanatory Notes on it). To that extent, therefore, the Framework Directive 89/391/EEC (adopted in 1989) continues to have legal effect in the UK; but the regulations implementing it can now be subject to repeal or amendment. Ultimately, much will depend upon the politics of deregulation in the sphere of OSH. While repealing laws protecting OSH is unlikely to be attractive to a Tory Government committed to a ‘levelling up’ agenda, the last few years remind us that political circumstances can change very quickly.

Given the primacy of politics in the post-Brexit protection of labour standards, what is to be done? Trade unions must engage in political lobbying, pressuring the Government to extend the relevant provisions to limb (b) workers, to achieve some normative consistency with the direct change brought about by the IWGB JR.  Another option would be to include health and safety issues as an agreed matter in collective bargaining procedures, negotiated either under the Schedule A1 TULRC Act or in voluntary bargaining arrangements. As underlined by the ILO,

“collective bargaining agreements should always include points on safety, health and environment, and should guarantee standards that go further than the existing legislative minimum – particularly with regard to (…) workers’ participation in the prevention of injuries and ill-health”.

A final possibility would be possible to seek another judicial review arguing that the Dir. 89/391/EEC require national Government to confer the right for workers to be consulted on health and safety matters, whereas the domestic legislation by which the UK has sought to transpose the Directive confers effectively this right to “employees” only; but it would face the inevitable argument that there is no longer a duty to implement the Directive post-Brexit.  Strategic litigation on OSH might be a way to enhance the collective OSH rights and to provide better prevention for limb (b) workers. Unfortunately, as the legal reality of Brexit bites, the window for another IWGB-style judicial review is closing. This means that the political engagement of trade unions, securing positive legislation, will become more important in the post-Brexit landscape.

---

[1] i.e., “the employer shall have a duty to ensure the safety and health of workers in every aspect related to the work”.

[2] Robens, A. 1972. Safety and health at work: report of the Committee, 1970-72 (Vol.1.) HM Stationery Office, p.6

(Suggested citation: A Cefaliello, ‘Beyond status: the long road towards effective health and safety rights for on-demand workers – by Aude Cefaliello’ UK Labour Law Blog, 16 June 2021, available at https://uklabourlawblog.com/)