Following the High Court case of R (on the application of the Independent Workers' Union of Great Britain) v Secretary of State for Work and Pensions (please see our Legal Update) the Government has laid the Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 (Order) before Parliament extending the protection afforded under section 44 of the Employment Rights Act 1996 (ERA) to workers. The protection is already available to employees.
Background
Section 44 of the ERA applies to health and safety cases and currently protects employees (not workers) against suffering a detriment by their employer on either of the following grounds:
- in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work (section 44 (d) ERA); or
- in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger (Section 44(e) ERA).
The High Court found in the IWGB case that confining such protection to employees was a breach of the EU Health and Safety Framework Directive. Although the UK has left the EU now, the decision was made before the end of the implementation period.
Comment
If Parliament approve the Order, all workers will be protected against detriment under section 44 of the ERA from 31 May 2021. The change in legislation will be welcomed by workers. Considering the impact of the pandemic on this type of issue, employers should take steps now to ensure workers are adequately protected.
Sections 44 and 100 (relating to unfair dismissal in the above circumstances and limited to employees) of the ERA have come to the forefront during the pandemic due to the on-going health and safety concerns surrounding the workplace.
If you need any assistance with the issues raised please do not hesitate to contact a member of the UK employment team.
