Section 44 of the Employment Rights Act 1996 (ERA) applies to health and safety cases and previously protected only employees (not workers) against suffering a detriment by their employer on (amongst others) either of the following grounds:
- in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work (section 44 (d) ERA); or
- in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger (Section 44(e) ERA).
The High Court found in the case of R (on the application of the Independent Workers' Union of Great Britain) v Secretary of State for Work and Pensions (please see our Legal Update) that confining such protection to employees was a breach of the EU Health and Safety Framework Directive. Although the UK has left the EU now, the decision was made before the end of the implementation period.
Following this change in legislation workers are now protected against detriments occurring on or after 31 May 2021. The legislation makes it clear that the act or failure to act, or the last of a series of similar relevant acts or failures to act must occur on or after 31 May 2021 in order for the worker protection to apply. Acas guidance on working safely during coronavirus (Covid-19) has been updated to reflect the change.
It is important for employers to be mindful of this extended protection and to ensure that workers are adequately protected.
If you need any assistance with the issues raised please do not hesitate to contact a member of the UK employment team.