can a worker claim that they have been subjected to a health and safety detriment?

17 March 2021

Section 44 of the Employment Rights Act 1996 has been a hot topic for the past year. This statutory provision provides protection to employees from being subjected to a health and safety detriment, or failure to act, by their employer on the basis that the employee left or refused to return to work or took appropriate steps to protect themselves because the employee believed they were in serious and imminent danger.

At the moment this protection only covers employees.

In R (on the application of the Independent Workers’ Union of Great Britain) v Secretary of State for Work and Pensions and anor, the High Court granted a declaration confirming that limiting the protection to employees was a breach of the EU Health and Safety Framework Directive.

The Government has now laid an Order before Parliament to amend section 44 so that the protection will extend to workers. If approved the Order will come into force on 31 May 2021.

This is particularly topical in the light of the pandemic and the concerns many people feel about returning to offices when lockdown is over. Historically this provision of the Employment Rights Act is not often used but we envisage a lot more claims about this in the new post-Covid world.

This blog was written by Joanne Sinclair, Trainee, didlaw.

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