New worker rights in health and safety cases

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From 31 May 2021, legislation protecting employees from suffering a detriment in specified health and safety cases was extended to workers. This followed the High Court decision in R (Independent Workers’ Union of Great Britain) v Secretary of State for Work and Pensions and another in 2020.

The Independent Workers’ Union of Great Britain (IWUGB) is a trade union with a membership made up of mostly “gig economy” workers. Between March and 21 May 2020, IWUGB’s legal department received more than 140 queries about COVID-19 issues. Matters members requested assistance in raising included the failure to package COVID-19 samples correctly to protect medical couriers, failure to implement social distancing while waiting for restaurant collections, and a lack of PPE. Some IWUGB members had written to businesses they worked for, highlighting their fear of working without adequate PPE.

Had these workers been employees, they could have been protected from their employer subjecting them to a detriment if they left work in circumstances of serious and imminent danger, and in other health and safety cases, such as if they took steps to protect themselves or others from such danger. IWUGB considered that this legislation did not offer adequate protection to its members, since it protected employees but not workers.

IWUGB brought High Court proceedings against the Secretaries of State. It argued that the UK had failed to properly implement EU health and safety legislation (the Framework Directive) into UK law, because it left workers without protection. Interestingly, the gap in protection for workers had existed since 1992, the time by which the UK was required to have implemented the Framework Directive. IWUGB argued that “the COVID-19 pandemic gives it a particular salience and significance” as its members “include taxi and private hire drivers and chauffeurs, bus and coach drivers, and van drivers” and these occupations unfortunately all “have higher than average rates of death from COVID-19”. IWUGB argued that these occupations therefore have particular need for the kinds of health and safety measures required by the Framework Directive.

The High Court summarised the Framework Directive as requiring “that workers who take the appropriate steps in response to serious and imminent danger are not to be disadvantaged for doing so, unless they act carelessly or negligently”. The Court found that whilst UK law provided such protection for employees, “the UK has failed to properly implement the Framework Directive” in respect of workers.

On 1 March 2021, draft legislation was laid before Parliament to change this situation and was subsequently approved, leading to the Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 taking effect from 31 May 2021.

Both workers and employees now have a right not to be subjected to a detriment by their employer if they absent themselves from work, or take appropriate steps to protect themselves or others, in dangerous circumstances which they reasonably believe to be serious and imminent.

Although workers who have been concerned about the danger of COVID-19 during the pandemic may welcome this change in the law, its timing may be of some disappointment. The new legislation will not cover detriments that occurred before 31 May 2021, unless they form part of a series that continued on or after 31 May.

If you have any queries regarding this or any other employment matter, please do not hesitate to contact a member of the team.