The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 has extended protection against detriment to workers from 31 May 2021.
Issue
Section 44 Employment Rights Act 1996 (the ERA 1996) offered protection to employees (and not workers) from detriment on health and safety grounds as prescribed in Section 44. In the case of R (on the application of the Independent Workers’ Union of Great Britain) v Secretary of State for Work and Pensions it was argued that by limiting the protection to employees only, the UK government had not properly implemented Article 8(4) and Article 8(5) of the EU Health and Safety Framework Directive (the Directive)
Finding
The High Court agreed, finding that protection from detriment under section 44 ERA 1996 should be extended to workers so as to comply with the Directive.
The protection applies to acts of detriment that occurred on or after 31 May 2021
Comment
The coronavirus pandemic highlighted the “gap” in protection for workers under section 44 ERA 1996 who, if they refused to attend work on health and safety grounds, had no protection from detriment (albeit they could still rely on protection under whistleblowing legislation).
It is important for employers to be aware of the extended protection and to ensure that where health and safety concerns have been raised the worker is not subjected to any detriment.
It continues to be important for governing boards to keep under review what COVID measures they are taking and be mindful of their legal duties (especially in the light of continuing challenges from Unions and others). We have updated our summary advice about legal duties and this can be downloaded from here.