Health and Safety Detriment Protection Now Available for Workers

You can read more about the protection in our previous article.

Previously, only employees were offered protection under s44 of the Employment Rights Act 1996 ('the Act'). Now both employees and workers cannot be subjected to detriment for:

• raising health and safety concerns
• leaving or refusing to return to an unsafe workplace
• taking appropriate steps to protect themselves in circumstances where they reasonably believe they are in imminent or serious danger

Workers are defined as those who have entered into:

• a contract of employment; or
• any other contract to perform work personally which is not a contract between a customer and a client.

However, this protection will not extend to workers with respect to acts for which the date of the relevant act or failure to act, or the last of a series of similar relevant acts or failures to act, occurred before 31 May 2021.

The previous exclusion of workers from the protection from detriment on health and safety grounds has been brought in to the spotlight and challenged during the pandemic and has been held in recent case law as failing to properly implement EU law. As a result of the new Order the ACAS guidance 'Working safely during coronavirus (COVID-19)'  has also been updated to reflect this change and states that workers should be protected from any detriment if they "reasonably believe being at work or doing certain tasks would put them in serious and imminent danger or if they take action over a health and safety issue". The guidance also states that workers will have the right to make a claim to an employment tribunal if they are subject to such detriment after 31 May 2021.

How Does This Affect Employers?

Employers should be mindful of the extension of the protection from health and safety detriment to workers in addition to employees and update their policies to reflect this change. Care should also be taken when responding to health and safety concerns raised by workers, or situations where workers refuse to attend because of health and safety concerns particularly in light of the pandemic.

If you would like to find out more about this extension of protection or would like specialist advice on how this change could affect you, please contact Helen Hughes in our Employment Law team on 07741 312352, or complete the form below.