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Professor Nicola Countouris’ work used in High Court judgement on UK Health and Safety Legislation

23 November 2020

Professor Nicola Countouris's work was used in a recent High Court case relating to UK Health and Safety Provisions

Nicola Countouris

In a seminal judgment the High Court recently declared that to the extent that some UK Health and Safety provisions restrict to ‘employees’ the enjoyment of some rights that the EU Health and Safety Framework Directive (and its ‘daughter’ directives such as Dir. 89/656) grants to ‘workers’, such domestic regulations are in breach of EU law.  

In developing their arguments, both counsel for the claimant (the union IWGB) and counsel for the UK Government relied on the published work of UCL academic Prof. Nicola Countouris,  ‘The Concept of “Worker” in European Labour Law: Fragmentation, Autonomy and Scope’, (2018) 47 Industrial Law Journal, 192. 

From transport services to logistics, cleaning, security, and food delivery, many of the services that we have come to recognize increasingly as ‘essential’ to our livelihoods are performed by precariously employed workers. They often provide their labour through on-line platforms and their contracts are increasingly structured as casual contracts of self-employment, or as ‘limb-b’ worker contracts. 

The classification of these workers as self-employed or limb-b workers typically results in their being excluded from most or all workplace rights. During the Covid-19 pandemic it became acutely clear that UK health and safety legislation also excluded some of these workers from essential protections, including the right to receive adequate personal protective equipment while performing their duties.  

Prof. Countouris commented ‘The High Court reached the correct conclusion. The EU concept of ‘worker’ is clearly broader than the UK ‘employee’ definition and the case law of the European Court of Justice has consistently suggested that when it comes to the personal scope of EU Health and Safety instruments, the EU worker concept is both broad and autonomous, that is to say independent from any conflicting and narrower national definitions. This decision also demonstrates that, unless the Brexit deal enshrines a commitment on the ‘level playing field’, UK workers are likely to miss out on important social rights guaranteed by EU law’.