The coronavirus pandemic has resulted in the health and safety of individuals in the workplace to come under much closer inspection, meaning that employees are now more aware of what steps they can take if they believe their employer is not providing a safe working environment.
Section 44 of The Employment Rights Act 1996 (ERA) presently provides that an employee has the right to not be subjected to any detriment by their employer on several conditions. To simplify what is stated in this section, this means an employee can claim in a tribunal if subjected to a detriment if they reasonably believe themselves or others (such as a household member) to be at risk of serious harm. Before 2020, the right was rarely used as claims concerning ‘protection from detriment’ were fairly uncommon. However, this has now been brought into focus with health and safety in the workplace being under the spotlight since the peak of the pandemic. Employees are much more conscious of their environment and whether their employer is providing them a safe place to work. Employees are also experiencing heightened anxiety when travelling to, or being in work, during the pandemic as fear of illness is now more prevalent than ever before.
The protection from ‘health and safety detriment’ has previously been restricted to employees only however, The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 is currently before Parliament which plans to extend protection against detriment to the wider class of “workers” in certain health and safety cases from 31 May 2021.
The amendment order extends the same level of protection to workers as it did to employees: both workers and employees are able to leave/refuse to return to work or take measures to protect themselves and others where they feel danger is ‘serious and imminent’. The change comes from the decision in R (on the application of the IGWU) v Secretary of State for Work and Pensions, where it was declared that restricting this protection to employees was a breach of the EU Health & Safety Framework Directive. It also held that the Personal Protective Equipment (PPE) Directive should apply to all workers and not just employees. Although it is important to note that the new order does not extend the protection from dismissal under s.100 ERA, on the foundation that workers do not profit from protection from unjust dismissal and there should be no requirement to consult protection exclusively for health and safety purposes. They will, however, be able to make a detriment claim if they are subjected to a sanction for refusing to work – whether that being reduced pay or contract termination.
These new Regulations are likely to be welcomed by many workers who were previously not covered by the protection from detriment that was offered to employees. However, it is important to note that it will only be applicable to cases that have been brought on or are after 31 May 2021.
If you have any queries about any topics discussed in this blog, then please contact us today on 0845 262 6260 to speak to one of our HR or Health and Safety experts.