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  • Writer's pictureRobert Spicer



Section 44 of the Employment Rights Act 1996 states, in summary, that it is automatically unfair to dismiss an employee because she/he brings to the employer’s attention, by reasonable means, conditions of work which she/he reasonably believes are harmful or potentially harmful to health and safety. Also, it is unlawful to subject an employee to any other detriment than dismissal for any of these reasons.

From 31 May 2021, ‘workers’ as well as employees have gained the right not to be subjected to a detriment in health and safety cases.

Under previous law, section 44 of the 1996 Act protected employees against detriment (for example, disciplinary action or suspension of pay) and dismissal as a result of their taking steps to protect themselves or others in certain health and safety situations, including where ‘in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably be expected to avert, he left or … (while the danger persisted) refused to return to his place of work’.

This change came about following the 2020 decision in IWGB v Secretary of State for Work and Pensions where the High Court held that the government had failed properly to implement into UK law the Health and Safety Framework Directive so that all workers (not only employees) should be protected against detriment for leaving work or taking appropriate steps to protect themselves in the face of serious and imminent danger. It also held that the Personal Protective Equipment (PPE) Directive should apply to all workers and not just employees.

The change is made by the Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 which amends section 44 of the Employment Rights Act 1996.

The explanatory memorandum attached to the Order includes the following:

· The Employment Rights Act 1996 sets out many of the employment rights of workers and employees, including the right to protection from detriment in health and safety cases.

· The legislation as currently drafted limits protections from detriment in health and safety cases to ‘employees’ only, which does not align with the High Court’s judgment.

· Workers will gain the right to protection from detriment if they are in circumstances of danger which they reasonably believe to be serious and imminent and they leave or refuse to return to their place of work.

· The Order will give additional clarity to both workers and businesses following the judgment. It will also protect workers’ rights and support workers through the challenges created by the Covid-19 pandemic.

· The amendments are not expected to have a disproportionate cost or impact on any of the regions. Given that workers represent a small share of the workforce, the direct cost to business of the policy change is expected to be below the de minimis £5m threshold.

· As a result of the High Court judgment in relation to section 44 of the Employment Rights Act 1996 a consultation has not been carried out. The government is committed to updating the legislation as quickly as possible to ensure clarity as to the extent of workers’ rights.

· The government will engage directly with key trade unions, business representative organisations and with ACAS and the Citizens Advice Bureau in preparation for employers and workers contacting their organisations.

· There is no significant, impact on business, charities or voluntary bodies. or on the public sector.

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