On 31 May 2021, the Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 is due to come into force, extending the right not to be subjected to detriment to workers in certain health and safety cases.
Background
Section 44 of The Employment Rights Act 1996 (ERA) currently provides that an employee has the right not to be subjected to any detriment by their employer on a number of grounds including:
- Where the employee left, proposed to leave, or refused to return to their place of work due to a reasonable belief that attendance at work would put them in serious and imminent danger (section 44(d) ERA).
- 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 other persons from the danger (section 44(e) ERA).
However, in a recent case the High Court held that the UK had failed to properly implement two EU Directives dating back to 1989. The High Court held that both Directives imposed obligations relating to a wider category than just employees. Section 44 of the ERA was therefore found to have failed to implement the Directives properly by not applying the same level of protection to workers as it did to employees.
Following on from this case, the Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 was laid before Parliament on 1 March 2021, and, if approved, will come into force on 31 May 2021. The amendment order will insert a new provision into the ERA extending the protection of sections 44(d) and (e) of the ERA to both employees and workers.
Comment
Employers are perhaps not used to seeing section 44 claims being brought by employees, however, the COVID-19 pandemic has brought this type of claim into particular focus, with more employees than ever seeking to rely on section 44 where they are concerned their employer is failing in their duty to provide a COVID secure workplace.
These amendments to the ERA are likely to be welcomed by many workers who have previously not been covered by the protection from detriment which has been afforded to employees. However, if the Order is approved, it will only be applicable to cases brought on or after 31 May 2021, which will potentially limit the ability of workers to take steps to protect themselves from perceived danger in the workplace due to factors relating to COVID-19 whilst the pandemic is at its height.
Rachel Collins