Workers to get same rights as employees to protection from detriment for health and safety right assertions

On the 1 March 2021, the government laid an order before Parliament to amend the Employment Rights Act 1996 (ERA 1996) and level the playing field between the protection offered to “employees” and “workers” in the workplace.

The draft Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 which, if passed, would extend the rights under section 44(1) (d) and (e) of the ERA 1996 not to be subjected to a detriment in health and safety cases to workers.

The effect on the workplace would be twofold. Firstly, it would empower workers (who are defined as people who have a contract to work personally for another – where the relationship is not of contractor and client) to raise concerns over safety in the workplace and to act on that basis, for example refusing to work or return to work until changes have been made. Secondly, it would protect workers from suffering a detriment for their decision to act such as non-payment of wages or other rights such as holiday pay.

Section 44(1) of the ERA 1996 currently protects employees from being subjected to a detriment by their employer in specific health and safety cases, including in the following circumstances:

• Absence or proposed absence from work due to a reasonable belief that attendance at work would put them in serious and imminent danger (and they could not reasonably have been expected to avert that danger) (Section 44(1) (d), ERA 1996).
• Taking or proposing to take appropriate steps to protect themselves or others in the reasonable belief that there is a serious and imminent danger (Section 44(1) (e), ERA 1996).

What rights do workers currently have?

As the law stands, only persons working under a traditional contract of employment, as employees, have the right not to be subjected to a detriment for leaving or refusing to return to work in such circumstances, or for taking steps to protect themselves.

Workers, those with the freedom to reject an offer of work and not be held to it by a contract have thus far been denied the same protections.

Certainly the catalyst for the Government’s move to amend Section 44 of the ERA 1996 was the High Court’s decision in R (Independent Workers’ Union of Great Britain) v Secretary of State for Work and Pensions and another [2020] EWHC 3050 (IWGB), where it was decided that confining the protection offered by Section 44(1) (d) and (e) to employees was a breach of the EU Health and Safety Framework Directive (No.89/391). Importantly, the High Court’s decision came before our exit from the European Union on the 31 December 2021, when EU law continued to be strictly applied by national courts.

The draft explanatory memorandum accompanying the Order explicitly states that the amendment will bring the ERA 1996 in line with national and EU law and provide clarity to both workers and businesses following the judgment in IWGB. It also hopes to protect workers’ rights and support workers through the challenges created by the COVID-19 pandemic.

Our thoughts

The amendment is set to be scrutinised in Parliament and subjected to the usual voting process. If accepted, the implementation date will be the 31 May 2021, which means that workers will not be able rely on the new Section 44(1) before this date and any claim brought soon after the date will need to show that the workplace danger or the employer’s inaction continued throughout this period.

This is good news for workers, albeit coming 1 year into the COVID-19 pandemic. Following the decision of the Supreme Court in the Uber BV and others (Appellants) v Aslam, where workers who self-employed, have had their holiday rights upheld, it would be unjust to continue to confine health and safety protections to only employees.

Work is already underway to consult and extend The Personal Protective Equipment at Work Regulations 1992/2966 to all workers through an additional statutory instrument due to be laid later this year.