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Health & Safety Alert - protection extended to workers

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Health & Safety Alert - protection extended to workers

There have been so many changes in 2021 – furlough ending, an increase in hybrid working, the extension of IR35 to the private sector, statutory pay rises, etc.  There is one however that you may have missed with everything going on and that is the extension of health and safety protection to workers.

What’s happened?

Previously the right not to be subjected to detrimental treatment for leaving or refusing to return to work if you believed yourself to be in 'serious and imminent danger' applied only if you were an employee.  Now the right not to be subjected to a detriment in certain health and safety cases has been extended to workers.  This was achieved largely by the insertion of a new section (44(1A)) into the Employment Rights Act 1996.

The amendments align with the judgment in R (Independent Workers' Union of Great Britain) v Secretary of State for Work and Pensions and another 2020.  The High Court in that case held that the UK had failed to properly implement the EU Health and Safety Directive by limiting protection to employees and therefore excluding workers from protection.

When did this come into effect?

The change applies to health and safety detriments occurring on or after 31 May 2021.

Why is this legislation important?

The COVID-19 pandemic and subsequent Government guidance put concerns around the health and safety of the workforce firmly on the table.  Employees have been able to seek to rely on section 44 of the Employment Rights Act 1996 as grounds on which to refuse to return to work, but the extension of this protection will allow both workers and employees to leave / refuse to return to work or take steps to protect themselves and others where they feel danger is ‘serious and imminent’.

What to do now

While some employers are settling into a sense of normality, the situation is still uncertain and employers need to be alert to the needs of their business and those engaged in it to ensure, as far as practicable, the safety of their workforce. 

In practice, for businesses that rely mainly on employees it is likely to have little impact; if not, this change may result in those businesses who rely predominantly on workers needing to engage with their workforce and implement additional safety measures.  Acas guidance on working safely during Covid-19 has been updated to reflect the change and we would encourage employers to review their working practices in light of that guidance.

Like all claims, whether a worker or employee will be protected remains fact specific and each workplace will have different challenges.  If in doubt, get in touch.