The new Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 (the “Order”) came into force on 31 May 2021. It will amend the Employment Rights Act 1996 (“ERA”) by extending the rights not to be subjected to a detriment in certain health and safety cases to workers (these rights are currently only conferred on employees).
What is the current position?
The ERA currently protects employees from being subject to a detriment by their employer in certain health and safety situations. These are: (1) absence or proposed absence from work because the employee reasonably believes that attending work would put them in serious and imminent danger; and (2) taking or proposing to take appropriate steps to protect themselves or others in the reasonable belief that there is a serious and imminent danger.
These rights were rarely used before the pandemic but are now being used more frequently by staff who are anxious about travelling to, or being in, work.
Why the need for change?
A recent High Court decision held that the UK had failed to properly implement part of the EU Health and Safety Framework Directive by limiting the protection set out above to employees and not extending it to workers. In that case, gig economy workers successfully argued that they should have been protected under the ERA as they provided essential services during the Covid-19 pandemic and were therefore exposed to significant health risks whilst at work. The Order has been brought into force as a result of the decision in that case.
Whilst this is likely to be welcome news for workers, if a relevant act or failure to act occurred before 31 May 2021 (and it is not part of a series of similar relevant acts or failures to act that continued on or after 31 May 2021), a worker will not be able to rely on the new law.