What is the change?
Workers will now be able to able to benefit from health and safety protections which previously only applied to employees.
Previously under s44 of the Employment Rights Act 1996, only an employee could claim in an Employment Tribunal if they had been subjected to a detriment because they reasonably believed that being at work would place them (or someone else) in serious, imminent danger.
New Regulations: the Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021, came into force on 31 May 2021. This legislation amends s44 of the Employment Rights Act 1996 and extends the protection to workers. The change comes hot on the heels of the High Court decision in R (on the application of the IGWU) v Secretary of State for Work and Pensions, where an application for judicial review seeking a declaration that the UK had failed to properly implement into national law two EU Directives which would cover workers, was upheld. The High Court found that restricting protection from detriment to just employees was a breach of the EU Health & Safety Framework Directive.
The change applies to health and safety detriments to workers occurring on or after 31 May 2021.
Why is this legislation important?
Up until now, this protection had only applied to employees and was rarely used in practice. The outbreak of the COVID-19 pandemic and the Government's guidance to work from home to prevent the spread of the disease within the workplace, however, has brought this right to the fore.
Employees who are worried about their health and safety at work have always been able to rely on s44 as grounds on which to refuse to return to work if they reasonably believe that they – or someone else, such as a family member or dependent– would be at serious or imminent risk of danger by doing so.
The extension of this protection to workers means that a greater number of people will now be able to argue that they also should not suffer any detriment for refusing to come into work while the transmission of COVID-19 to themselves or the people they love or care for, remains a serious risk.
What should employers do?
In response to the pandemic, as more and more businesses look at implementing flexible working arrangement policies that require employees and workers to work remotely or be physically present, employers should do everything they can to ensure that their workplace is COVID secure and explain/signpost clearly how they intend on keeping everybody as safe as possible.
Whether an employee or worker will be protected under this new legislation will remain fact specific, but if an employee or worker refuses to return to work on the basis that they consider it to be unsafe, employers are encouraged to engage with them first to understand and alleviate their fears and concerns. Employers should not rush to make decisions which may unknowingly subject their employees or workers to a detriment.
Despite a successful and on-going roll out of the vaccination program, the pandemic and its impact on working are still prevalent. Although remote working conditions are likely to remain "the norm" for the near future, employers should make themselves aware of this legislation, whom it now protects and ensure that their workplace and practices conform with these legal changes, so that unnecessary claims can be avoided.
Originally Published 29 June 2021
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