by James Lynas, arch.resource member.

From 31 May 2021 protection for retaliation against people complaining about health and safety issues will extend to cover “workers” and not just “employees”.

Background – Health & Safety rights for employees

Section 44 of the Employment Rights Act gives rights to people working under a contract of employment or an apprenticeship (an “employee”) to be protected against detriment and dismissal in two situations where there are “circumstances of danger which the employee genuinely and reasonably believed to be serious and imminent.”

The first is where the employee leaves or proposes to leave or refuses (whilst the danger persists) to return to their place of work (or any dangerous part of it) and the employee could not otherwise avert the danger.

The second is where the employee takes or proposes to take appropriate steps to protect anyone (which includes members of the public) from the danger. Whether a step is “appropriate” is determined “by reference to all the circumstances” including, the extent of the employee’s knowledge and the facilities and advice available to the employee. It is a defence where the employer shows that it was/would have been so negligent for the employee to take the steps they took or proposed to take that a reasonable employer could have subjected them to the detriment or dismissed them.

These two rights apply regardless how long the employee has worked for their employer. There is no cap on the compensation that can be awarded for such claims.

Since the start of the pandemic this provision has been activated by many employees, particularly those with the support of trade unions in sectors where employees felt their workplace (and indeed their journey to work) posed a risk of them catching SARS-2 Coronavirus and developing Covid-19.

Extending Health & Safety rights beyond employees

The rights, as set out in the Employment Rights Act, do not apply to people who did not have a contract of employment but who are treated by the law as “workers” for such things as holiday pay and the national minimum wage.

The Independent Workers Union of Great Britain (IWGB) was founded in 2012 and primarily represents workers in the gig economy – precisely those who do not have protection of section 44 of the Employment Rights Act.

Section 44 was introduced into the Employment Rights Act as a result of a 1989 directive from the European Community (as it then was). It required member states to bring in protection for “workers” who were defined as “any persons employed by an employer, including trainees and apprentices but excluding domestic servants”. The European Court has over many years made it very clear that “worker” is not to be defined by reference to how the term is used in each member state but has its own EU- wide meaning  – “The essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.”

The IWGB brought a claim in the High Court that by limiting the protection of section 44 to just those with a contract of employment the UK had failed to implement the 1989 directive – it should extend to those who are engaged to work for another for money regardless of whether that work was under an employment contract.

This claim was presented and decided before the end of the Brexit “Implementation” period which meant that the High Court had clear authority to decide if UK law was compliant with the 1989 Directive.

In November 2020 the High Court agreed with IWGB and declared that the UK had failed to implement the directive properly. This left the Government with a decision – it could appeal the High Court decision to the Court of Appeal to delay formally changing the law and thus protect companies against additional “regulation” – or it could accept that it was wrong and amend UK law in submission to the EU directive.

It decided to split the difference – the law wasn’t changed immediately (as this would have empowered people at the height of the Covid second wave). Instead the law is being changed from 31 May 2021. From that date “workers” will have the same protection against retaliatory action by employers as “employees” have.

Practical Implications

In an attempt to keep the “worker” category separate from the “employee” category many employers only allow “employees” to access formal HR policies such as the disciplinary policy.

Employers should urgently review this approach as there is an increased chance that managers may take disciplinary action against troublesome “workers” wrongly believing they have no rights. This is even more important in the context of the recent Supreme Court decision in Aslam v Uber and the possibility that the protection of collective bargaining and TUPE will be extended to the wider group of “workers”.

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