The Weekly Round-up: Workers’ Rights and Personal Protective Equipment
16 November 2020
In the news
Dominic Cummings departed from Downing Street in dramatic fashion this week. The departure may herald a change of tone for this government – but in the meantime, criticisms of government measures continue on human rights grounds.
The Joint Committee on Human Rights this week published two reports.
The first report provided legislative scrutiny of the Covert Human Intelligence Sources (Criminal Conduct) Bill. This contains a proposal to grant government agencies (of every shape and size, including the Food Standards Agency and the Competition and Markets Authority) the power to authorise undercover operatives to commit acts in the course of their undercover activities that would be otherwise criminal. The Committee’s conclusion was that the Bill does not contain adequate safeguards and oversight to prevent abuse of the proposed powers to authorise such conduct. Their report recommends a requirement for prior judicial approval before a public body can provide a criminal conduct authorisation, along with an upper limit on the type of criminal conduct that can be authorised, and a reduction in the range of public authorities with these powers, and The report is available here.
The Committee has also published a report on the human rights of black people in the UK. They have called on the government to set out a comprehensive Government race equality strategy, based on increased data collection. In particular, they have urged a focus on ending racial disparities associated with the security services (police and Home Office), democratic participation (unequal voter registration), and healthcare (the maternal mortality gap). They have also recommended that the Equality and Human Rights Commission be given stronger powers so that it can do more to tackle race inequality in the UK. The report is available here.
The Home Office has faced criticism from three independent bodies this week.
Independent Monitor Bodies (‘IMBs’) wrote to Home Office immigration minister Chris Philp in October to highlight treatment faced by asylum-seekers crossing the channel. They have observed people being moved between detention centres with injuries, overcrowded conditions, and vulnerable individuals being put on removal flights while distressed and sometimes assessed as suicide risks. The Home Office has now said it will provide a response to these claims.
The Good Law Project claims that new Home Office rules on deportation of rough sleepers, allowing their removal from December onwards, are unlawful. It has raised concerns that the new powers could be used unlawfully against people made unemployed due to COVID-19, and against individuals fleeing domestic violence, trafficking or gang violence. The Home Office has stated that involuntary deportation “would be a last-resort measure, and initially individuals would be asked to leave voluntarily with government support.”
Finally, the British Red Cross has criticised the family reunion visa system. Family members of refugees overseas must access a UK embassy or visa application centre in order to submit an application, and return later to find out if they have been successful. The BRC’s findings indicate that in order to reach these centres, family members are having to cross war zones, hide out to avoid imprisonment or abuse, or pay smugglers. The BRC recommends that applications be submitted online, and individuals only be required to travel to the centre after their application is processed. The Home Office has said that it requires attendance in person for the purpose of biometric data to assess the risks posed by those seeking family reunion visas, but has extended the period for travel from 30 to 90 days.
In other news:
The EU has drafted proposals to make hate speech against LGBTQ+ people a criminal offence under EU law, as part of the EU’s first ever unified strategy to achieve LGBTQ equality. This has come in response to the increasingly anti-LGBTQ atmosphere in Hungary, where the government is proposing to ban adoptions by gay couples, and in Poland, where there have been attacks on pride marches, and various communities have proudly designated themselves as ‘LGBT-free zones’.
In the courts
The Independent Workers Union of Great Britain brought a challenge regarding the government’s obligations to require the provision of PPE in the workplace for contractors, in light of COVID-19. In particular, they sought a declaration that the UK had failed to properly implement the EU health and safety ‘Framework Directive’ (Council Directive 89/391/EC) and the ‘PPE Directive’ (Council Directive 89/656/EC).
This came down to four questions:
- What definition of ‘worker’ applies to the Framework Directive and PPE Directive?
- Does UK law adequately implement the general principles embodied in Articles 5(1) and 6(1) of the Framework Directive, namely that (a) the employer has a duty to ensure workers’ health and safety, and (b) the employer must take all measures necessary to protect workers’ health and safety, including prevention of occupational risks, providing information and training, and provision of the necessary organisation and means – such measures to be adjusted to take into account changing circumstances?
- Does UK law adequately implement Articles 8(4) and 8(5) of the Framework Directive, namely that (a) workers must be able to take sufficient steps to avoid danger to their own safety, and (b) workers who take appropriate steps in response to such danger must not be disadvantaged, unless they acted carelessly or negligently?
- Does UK law adequately implement Article 3 of the PPE Directive, which requires that personal protective equipment shall be used when the relevant risks cannot be avoided by technical protection or other work organisation measures?
The court answered those questions as follows:
- The relevant definition of ‘worker’ is the autonomous EU law definition, which includes both employees and contractors (or ‘limb (b) workers’ – under s.230(3)(b) of the Employment Rights Act 1996)
- Yes. This is adequately implemented in section 3 of the Health and Safety at Work Act 1974.
- No. The first requirement is implemented in regulation 8 of the Management of Health and Safety at Work Regulations, but the second is only implemented for employees, not limb (b) workers, in sections 44 and 100 of the Employment Rights Act 1996.
- No. UK law places no obligation on employers to provide PPE to contractors/limb (b) workers, and is accordingly in breach of the Directive.
The court accordingly granted the declaration, and directed the Government to pay the IWUGB’s costs.
There were some other noteworthy cases:
- Topadar, R (On the Application Of) v Secretary of State for the Home Department: this case concerned continuation of leave to remain under s.3C Immigration Act 1971. The appellant had come to the UK under a student (Tier 4) visa, and sought leave to remain as a Tier 2 migrant, on the basis of a job as an account manager. His application was rejected owing to his employer’s failure to provide information requested by the Secretary of State. He appealed the decision on the basis of (a) a human rights claim made after the application (but before the administrative review decision), and (b) the fact that the Secretary of State had not notified him of the further information required from his sponsoring employer. This required the court to consider two key questions: (1) until what point could an application under s.3C(1) Immigration Act 1971 be varied, and (2) whether there was procedural unfairness in the failure to notify. The court held that the variation must be made prior to the decision refusing the application (rather than prior to administrative review), and that there was no procedural unfairness, because the Secretary of State had merely been requesting information, not making adverse findings directly against the applicant. The appeal was therefore dismissed.
- Kechedzhiev v Gdansk Regional Court, Poland: the appellant was due for extradition to Poland for offences involving facilitating prosecution and forged driving licences. He appealed under Article 8 ECHR, on the basis of his settled and law-abiding family life in the UK, and the child and pregnant wife he had to care for. The court balanced these concerns and the inevitable emotional harm against the seriousness of his offending, his status as a fugitive, the court’s respect for the Polish judicial authority’s decision, and the public interest in fulfilling its obligations under the European Arrest Warrants scheme. In conducting the balancing exercise, the court noted that it could only prevent extradition of a fugitive if the consequences would be ‘exceptionally severe’ (Norris v Government of USA) – and in this case they were not. The inevitable hardship would be no greater than the usual consequences of incarcerating a father who is the main breadwinner; the appellant’s family would be eligible for state financial assistance; and the mother could move to Bulgaria or back to Poland.
- On 25 November, an expert panel of Peter Skelton QC (of 1 Crown Office Row), Sarah Jones, Isabelle Mitchell, Peter Jones, Rory Phillips QC and Nicholas Griffin QC look at some of the key areas surrounding public inquiries including how inquiries are set up, the gathering of evidence, Maxwellisation, and what could be on the horizon. Register here.
On the UKHRB
- Owain Thomas explains the decision of the Supreme Court in Maughan on the standard of proof in inquest cases where the death might have been caused by suicide or unlawful killing
- On Law Pod UK, Emma-Louise Fenelon talks to David Anderson QC and others about the problems of delegated legislation and Henry VIII powers, and Rosalind English discusses the potential uses of artificial intelligence in health care, with Robert Kellar QC