For one in ten of people, returning to work could be particularly dangerous

The government faces a potential legal challenge over the health and safety rights of gig economy workers.

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One in ten working age adults in the UK now works in the “gig economy”, according to the Trades Union Congress’s last count in 2019. That’s 4.7 million independent workers who are paid per “gig”: jobs that can be flexible and practical but also often low-paid and precarious.

From restaurant app couriers to casual labourers in the construction industry, many gig economy workers were compelled to return to work this week – and many had already been working throughout the UK government’s coronavirus shutdown.

Most gig economy workers are not on staff and do not have “employee” status. Usually classed as self-employed contractors, they therefore miss out on the labour rights a traditional, salaried employee receives. In a pandemic situation, the status of such work is more exposed than ever.

If you aren’t categorised as an employee, you may miss out on health and safety workplace rights, which means you are in more danger of contracting Covid-19.

This is because there is a narrower definition of who is protected by such rights in the UK than in the EU directives from which our health and safety law derives, according to the Independent Workers' Union of Great Britain (IWGB), which has threatened to legally challenging the government on this issue.

In EU health and safety law, a “worker” is defined as anyone who works under the direction of another for money. In the UK’s Health and Safety at Work Act 1974, which implements the EU legislation, the word used is “employee” (Section 2 of the Act reads: “It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.”)

“Worker” and “employee” are separate legal terms, says Jason Moyer-Lee, general secretary of the IWGB, which represents non-staff workers and has fought high-profile cases against the likes of Uber and Deliveroo.

“All employers in the EU need to provide health and safety protections and PPE [personal protective equipment] for ‘workers’, but the UK has only said ‘employees’ need to be protected, and that’s a far smaller group,” he says.

“It will be helpful to establish these legal protections for workers, and could affect hundreds of thousands of people,” he adds. “If we don’t get it established, then it’s just one more excuse that the companies that use gig economy contracts have for failing to do anything.”

The union is preparing to launch a judicial review against the government unless it looks at changing this legislation.

The most visible representatives of the modern gig economy are Uber drivers and couriers for food companies such as Deliveroo. Workers for these kind of companies have continued to operate under the coronavirus lockdown, providing public transport alternatives and takeaway meals to the social-distancing public.

As I reported at the end of March, some have not felt safe and protected at work, compelled to buy their own protective supplies and facing financial barriers to self-isolation.

“Just because we’re self-employed doesn’t mean we’re at any less of a risk, so why does PPE seem to be an afterthought for us?” asks Hannah Beth, 24, in Stockton-on-Tees, who delivers Just Eat meals for a courier service called Stuart – part of the DPDgroup delivery firm.

“Ignoring our health and safety means ignoring that of the millions of people we deliver to, many of them self-isolating with Covid-19 symptoms or shielding at home because they’re high-risk. Protecting couriers would help protect the whole country.”

(Both Just Eat and Stuart have said they are compensating and protecting their contractors appropriately.)

Casual “per gig” contracts are also used in more traditional sectors, such as the construction and manufacturing industries, which have been urged to restart work this week under the loosened coronavirus lockdown measures. Indeed, it is thought that modern gig economy conditions are one factor behind the appalling suicide rates among construction workers in the UK (three times the male national average).

Potentially, such contracts in these industries could mean missing out on vital health and safety protections. There is already a higher rate of Covid-19 deaths in construction than most other sectors, according to Office for National Statistics figures for England and Wales. From 9 March to 20 April, there were 22 deaths among male low-skilled construction workers and 87 deaths of male workers in the skilled construction and building trades category.

Unite, the largest union that represents workers in every sector of construction, called government guidance for working on construction sites “dangerous” and “watered down” during the lockdown.

Now workers are returning, there are concerns about their protection both under health and safety legislation and employment law; the Employment Rights Act 1996 similarly protects just “employees” from detriment or dismissal for refusal to work when they face immediate danger.

“Large numbers – in excess of 50 per of workers on London construction sites, for example – have been classified as self-employed, and in most cases it’s a bogus classification for tax purposes, and they’re not protected by that [health and safety protections], so removing themselves will of course in many cases mean removing themselves from a job,” says Jerry Swain, Unite national officer for construction.

Members have been asking Unite to take action to make their construction sites safer, in light of the risk of coronavirus spreading.

“Construction unfortunately has a lot of what people might refer to as rogue employers, who care more about their profit than the safety of the workforce, so I think it’s inevitable that there will be sites where – if I was being polite – workers are going to face a challenge to keep themselves safe,” says Swain.

“Employment classification is an issue on every level. Covid-19 has simply highlighted an ongoing problem, from people getting appropriate holiday pay, to having the ability to speak up when things are wrong, to protection under the law – most of it is removed by a simple misclassification.”

Unsafe conditions and fear of reprisal for speaking up or refusing to work have been reported in the construction industry throughout the lockdown. A week into the official lockdown, trade publication Construction News revealed dangerous conditions and neglected health and safety guidance on sites, with workers feeling forced to work for fear of docked wages or losing their jobs.

The Health and Safety Executive has been contacted for comment, but has not yet responded at the time of writing.

Anoosh Chakelian is the New Statesman’s Britain editor.

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