Health and safety detriment protection extended to workers

Under section 44 of the Employment Rights Act 1996 (ERA), employees have, for several years, been protected from being subjected to a detriment by their employer where they:

• Leave, propose to leave, or refuse to return to their workplace due to a reasonable belief that such attendance would put them in serious and imminent danger; and
• In circumstances of danger (which the employee reasonably believed to be serious and imminent) the employee took or proposed to take appropriate steps to protect themselves or others from the danger.

The recent High Court case of ‘R (Independent Workers’ Union of Great Britain) -v- Secretary of State for Work and Pensions and another [2020] EWHC 3050 (Admin)’ identified that the UK had failed to properly implement two EU Directives related to health and safety detriment which dated back to 1989. The High Court held that the directives extended protection beyond a wider category than just employees.

Under the Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021, this protection has been extended to workers with effect from 31 May 2021.

This is a significant change to a piece of legislation that has become increasingly important as the COVID-19 pandemic continues. Whilst workers will only be able to rely on the provisions if they have been subjected to a detriment that occurs after 31 May 2021, it will still extend protection to workers who are often lower-paid and gig economy workers and who might not otherwise get the PPE and other protections that are given to employees.

This means that employers will need to consider whether they extend the same protections to their workers as they do to their employees. Failing to do so, or subjecting them to a detriment because they take appropriate steps to protect themselves, may now result in a claim under section 44 ERA.