During the coronavirus pandemic employees have benefitted from protection against being treated unfairly or dismissed as a result of raising serious health and safety concerns in the workplace. This long held right derives from section 44 of the Employment of Rights Act 1996. However, historically, workers (for example, those who work in the ‘gig economy’) have not had the same rights.
A case was brought against the government by the Independent Workers’ Union of Great Britain, which was heard by the High Court, in October 2020. As a result, new government regulations have been put before Parliament extending the health and safety detriment protection rights to workers.
Furthermore, there is also a plan to extend Regulation 4 of the Personal Protective Equipment at Work Regulations 1992 (“PPE Regulations”) that require employers to provide suitable personal protective equipment to employees, to also include workers.
What is changing from 31 May?
On 31 May 2021 the Employment Rights Act 1996 (Protection for Detriment in Health and Safety cases) (Amendment) Order 2021 is due to come into force. If approved, the new regulations will extend to workers the rights currently conferred under section 44 (1)(d) and (e) of the Employment Rights Act 1996, which are rights not to be subjected to detriments in certain health and safety cases.
This is to say that workers, as well as employees, will be protected against being treated unfairly as a result of raising serious health and safety concerns. Subsequently, this will have a significant impact on the protection of workers’ rights through the challenges created by the coronavirus pandemic.
What does this change mean?
Workers are not able to bring claims for unfair dismissal, however, they will be able to bring claims in an employment tribunal if they suffer detrimental treatment in relation to health and safety cases as follows:
- If they have to take absence, or propose to take absence, from work due to a reasonable belief that their presence in the workplace would put them in serious and imminent danger. This is provided that they could not reasonably be expected to avert that danger.
- If they have to take, or propose to take, appropriate steps to protect themselves or others as a result of the reasonable belief that there is a serious and imminent danger.
However, this protection only applies if the date of the relevant act or failure to act (or the last of a series of similar relevant acts) occurs after 31 May 2021.
Change to PPE regulations for workers
The explanatory memorandum to the new regulations amending the detriment sections of the Employment Rights Act states that there is a proposal to consult and extend to all workers the Personal Protective Equipment at Work Regulations 1992. This is due to be laid before Parliament later this year.
The current regulations require that suitable personal protective equipment (PPE) is provided to employees who may be exposed to a risk to their health or safety whilst at work, except where the risk has been adequately controlled by other means which are equally or more effective. The proposal is that this will be extended to workers as well.
How could this change affect employers?
The coronavirus pandemic has raised the importance and awareness of the protections employees have under the Act. As a result of the extension of the health and safety detriment protection rights, and potentially PPE protection to workers, employers will therefore need to increase their health and safety obligations to include workers as well.
What action should employers take now?
In conclusion, it is key for employers to communicate with employees and workers about the risks in the workplace as a result of the pandemic, and the steps that they are taking to mitigate those risks.
For instance, employers should encourage staff to work from home (where possible), complete a risk assessment, and take reasonable steps to prevent harm in the workplace. It’s also important to remember that employers are still responsible for their staff welfare, even if/when they work remotely. Our handy guide outlines how to deal with workplace injuries when your workforce is working from home.
There is also useful government guidelines on safer working practices, which include a range of different types of workplaces and sectors.
Each workplace will have different challenges. However, ultimately, employers should ensure that care is taken when dealing with employees and workers who have highlighted reasonable concerns.
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