Section 44 of the Employment Rights Act 1996 (ERA 1996) currently protects employees from being subjected to a detriment by their employer in specific health and safety cases, including:
- Absence or proposed absence from work due to a reasonable belief that attendance at work would put them in serious and imminent danger (and they could not reasonably have been expected to avert that danger) (section 44(d) ERA 1996).
- Taking or proposing to take appropriate steps to protect themselves or others in the reasonable belief that there is serious and imminent danger (section 44(e) ERA 1996).
Currently, protection from detriment on health and safety grounds under section 44 of the ERA 1996 is limited to employees alone. The High Court recently held that the UK had failed to properly implement the relevant EU directive into UK law by excluding workers from protection. Accordingly, the draft Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 (Order) was laid before Parliament on 1 March 2021 and is due to come into force on 31 May 2021. If the Order is approved, it will extend the rights currently conferred under sections 44(1)(d) and (e) of the ERA 1996 not to be subjected to a detriment in certain health and safety cases to workers.
A worker will not be regarded as having been subjected to a detriment if the date of the relevant act of failure to act, or the last of a serious of similar relevant acts or failures to act, occurred before 31 May 2021.
Once the Order comes into force workers will be able to bring an employment tribunal claim that they have been subjected to a health and safety detriment and obtain compensation if they are successful in the usual way. The extension of the protection to workers is potentially significant given the continuing impact of Covid-19 and the gradual re-opening of businesses after the latest lockdown.
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