Gig workers’ rights and their strategic litigation

A window of opportunity has opened up to utilise EU law on health and safety to advance the rights of ‘gig’ workers in domestic courts.

The Independent Workers’ Union of Great Britain (IWGB) represents ‘gig’ workers. At the end of November the High Court of England and Wales ruled, in its favour, that the government of the United Kingdom had failed adequately to transpose two European Union occupational health-and-safety directives into domestic law.

The ‘Framework Directive’ 89/391/EEC, on measures to encourage improvement in workers’ health and safety at work, is the cornerstone of the OSH regime in the EU, providing principles of prevention with which employers are charged. Among them is the obligation to assess risks at the workplace and to adopt general and particular measures, including provision of personal protective equipment—as regulated by Directive 89/656/EEC—to prevent them.

These measures have always been important to protect workers. But amid the Covid-19 pandemic they have become critical, if the fundamental right of health and safety of essential—often vulnerable—workers is to be guaranteed.

Narrower categories

The High Court decision has specific and direct implications for the UK but some transcend the peculiarities of its legal system. It clarifies that it is a breach of EU law to implement health-and-safety directives which apply to ‘workers’ by reference to narrower categories, such as the concept of ‘employee working under a contract of employment’ in the UK Health and Safety at Work Act of 1974.

The concept of ‘worker’ in EU law is substantially broader than the UK ‘employee’—and, potentially, than other, similarly national, notions of standard subordinate workers. It should be read as including non-standard, casual and ‘gig-economy’ workers typically covered by what is known in legal terminology as ‘limb (b)’ worker status, as defined, for instance, in the UK Employment Rights Act of 1996.

This is an important ruling. It strengthens earlier decisions, by the Court of Justice of the EU, that the UK was in breach of the personal scope of application of other EU directives, such as (in O’Brien) the Part-time Work Directive.

Highly topical

More broadly, the High Court effectively adjudicated on a question highly topical throughout Europe: should labour-law protection apply to gig (crowd)workers? In recent years, we have seen a flurry of decisions at the national level regarding their status. Germany and Italy have joined Spain, France, and—to a certain extent—the UK in requalifying riders/drivers as workers. The High Court decision, however, by providing a definitive interpretation of an EU-law instrument, provides a more structural and less ad hoc answer to this vexed question and so to the way platform work is to be regulated.

In reaching its conclusions, the High Court elaborated on why the Framework Directive suggested a broad understanding of the term ‘worker’, encompassing all those who fall within the CJEU’s autonomous and wide definition. An important factor was the wording of article 3(b) of the directive, providing that a legal person will be held to be the ‘employer’ responsible for the health and safety of a worker when it has responsibility for the undertaking or establishment.

This is a potential game-changer for workers in the gig economy: it shifts the scrutiny of judges away from the on-demand patterns typical of gig work and focuses on the responsibilities of the platform controlling how the work is performed once the worker logs on. These responsibilities can arise from the constant monitoring of the riders/drivers and the platforms’ capacities to sanction workers in what is, to all intents and purposes, their extended digital workplace.

Litigation strategies

The implication of this approach is that, as soon as such responsibility is established, the Framework Directive applies—thus extending to platforms the general obligation on the employer to ensure the health and safety of workers. The employer must identify, assess and prevent the risks—physical and psychological—arising from that work. It also opens the door to application of all the ‘daughter’ directives, such as 89/656/EEC as discussed in the IWGB judgment.

As these directives set common goals and aim to provide equivalent protection to all workers in the EU, this purposive approach could have important ramifications elsewhere, especially in the context of the litigation strategies envisaged by a number of national trade unions organising workers in the gig economy. In member states where gig workers are defined as self-employed and thus outside the scope of OSH legislation, national trade unions could explore two paths.

On the one hand, they could ask national tribunals to read domestic legislation in line with the broad concepts of ‘worker’ and ‘employer’ which visibly emerge from the purpose and letter of the Framework Directive. Alternatively, where this duty of consistent interpretation was likely to fall short of the mark, they could raise the question of the adequate implementation of article 3 of the Framework Directive, to encourage a preliminary reference before the CJEU. If the CJEU followed a similar purposive approach, the provisions of the directive would invariably be extended to gig workers.

Because of its ambitious purposes of worker protection, EU OSH legislation presents distinct strategic advantages for advancement of the rights of workers in the gig economy, over and above EU instruments addressing other working conditions. A window of opportunity has been opened which savvy lawyers and committed trade unions should promptly exploit.