Historically, only an ‘employee’ could claim under section 44 of the ERA if they had been subjected to a detriment because they reasonably believed that being at work would place them, or someone else, in serious and imminent danger. This, therefore, placed a significant restriction on the individuals able to benefit from the protection, excluding those working other than under a contract of employment.
The situation came to a head during the initial period of the COVID-19 pandemic, when workers, including private hire vehicle drivers and couriers, expressed concerns that they were at significant risk of contracting COVID-19 from undertaking their duties, as a result of inadequate provision of PPE and failure to implement social distancing, amongst other issues. However, as these workers were not engaged under a contract of employment, in the absence of statutory protection, they felt at risk of having their engagements suspended or terminated if they took steps to protect themselves by stopping work due to concerns over exposure to COVID-19.
Accordingly, an application for judicial review was brought by The Independent Workers’ Union of Great Britain in the High Court, seeking a declaration that the UK had failed properly to transpose Council Directive 89/391/EC and Council Directive 89/656/EC into domestic law, arguing that the Directives required Member States to confer health and safety protection on ‘workers’, whereas domestic legislation as implemented only extended to provide protection to ‘employees’. Consequently, this created a gap in the health and safety protection afforded to its members, who fell outside the definition of an ‘employee’.
After considering the legal framework in place, the High Court held that the UK had indeed failed to properly implement Council Directive 89/391/EC by limiting protection from detriment on health and safety grounds under section 44 of the ERA 1996 to only employees, excluding workers from its protection.
Accordingly, the Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021, was brought into force on 31 May 2021, amending section 44 of the ERA 1996 so as to extend the protection afforded to encompass ‘workers’ also, bringing this into line with EU law.
Under section 44 as amended, both employees and workers are now protected from being subjected to a detriment by their employer when they take, or propose to take, appropriate steps to protect themselves or others in the reasonable belief that there is serious and imminent danger to their health and safety in the workplace – bringing the protection afforded more closely in line with whistleblowing legislation for example.
However, significantly, this protection only applies to detriment experienced by workers after 31 May 2021. This will therefore not be retrospectively applied.
Employees who are worried about their health and safety at work have always been able to rely on section 44 of the ERA 1996, if they reasonably believed that they or someone else, would be at serious and imminent risk of danger by returning to the workplace. However, the extension of this protection to workers means that the protection applies more widely, also encompassing workers in such circumstances.
This issue has been brought to the forefront as a result of the COVID-19 pandemic, when the necessity for PPE and flexible working arrangements has been demonstrated to be more important than ever. Through the successful ongoing vaccination rollout, the UK appears to be moving to a state of returned ‘normality’ in terms of working practices. However, given the fluctuating case and hospitalisation levels from COVID-19, employers must remain alert to the needs of their business and those engaged, to ensure, as far as practicable, the safety of both their employees and workers.
What the legislation does not do is prevent employers from requiring a return to the workplace where it is reasonable to do so. The reasonableness of requiring a return to work will depend on factors such as safety measures in place, how well these have been communicated to the workforce and of course the individual circumstances and concerns of the employees and workers concerned.
However, employers who for example reduce the number of shifts offered or overlook an individual for promotion on the basis that they have been reluctant to return to the workplace could find themselves facing a section 44 claim where the worker reasonably thought they could come to serious harm by returning.