'Workers' to benefit from health and safety detriment protection

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

As the law currently stands, s. 44 and 100 of the Employment Rights Act 1996 protect employees against detriment (e.g. 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 comes about as a result of the 2020 decision in IWGB v Secretary of State for Work and Pensions where the High Court held the government had failed properly to implement into UK law the Health and Safety Framework Directive so that all workers (not just 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.

This change will be made by the Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 (currently only in draft form) and involves amendment of s. 44 of the Employment Rights Act 1996. Workers do not benefit from s.100 because that declares the dismissal of an employee in such circumstances to be unfair, and workers who are not employees do not have unfair dismissal rights.