The government is to amend UK legislation so that ‘workers’ are protected from health and safety detriment. New regulations have already been laid before Parliament that will amend section 44 of the Employment Rights Act to extend protection from health and safety detriment to workers, not just employees, in circumstances of danger which they reasonably believe to be serious and imminent. The change has been triggered by a High Court ruling at the end of last year – a judicial review brought by the IWGB union – which declared that the UK had failed to properly transpose European law into UK law. The change to section 44 is significant and will help protect workers during the pandemic who might otherwise not get the PPE and various other protections given to employees. Although workers won't be able to claim unfair dismissal, they will be able to make a detriment claim if they are subjected to a sanction for refusing to work, whether that be reduced pay or contract termination. The change to section 44 will come into force on 31 May and is a victory for the IWGB union that backed the judicial review back in November. So let's hear more about that, and what the change means for employers. Sarah Ashberry joined me by video-link from Leeds to discuss it. I started by asking Sarah how it came about:
Sarah Ashberry: “Well as I understand it, the union which represents a lot of quite precariously employed people in the gig economy, doing quite customer facing roles, they had a number of inquiries, they say, between March and May of last year, soon after the pandemic hitting and it was from their members who were really frightened about workplace safety for them. So they were inquiries, for example, from people whose job it was to deliver COVID-testing samples and they were concerned that they hadn't been provided with sufficient PPE to ensure that they could get these samples from A to B without becoming infected themselves. They're were also people engaged in work delivering meals from restaurants and they felt that when they had to go to the restaurant to pick up the food, before taking it to the customer, they were unable to do so in a way that preserved social distancing. So these were people engaged in working during the height of the pandemic, who were unable to work from home, they were stuck in jobs that forced them to be out and about interacting with people, and because they were workers and not employees they weren't actually technically protected by the section 44 law, which actually, at that time, applied to employees only.”
Joe Glavina: “So, Sarah, what's the change to section 44?"
Sarah Ashberry: “Well, as I understand it, the new law will expressly cover workers as well as employees, which is new, and there are some precedents for this, because as you're probably aware whistleblowing, for example, already covers both employees and workers. So this would sort of align with that.”
Joe Glavina: “This development is being celebrated by the unions. They say it's a victory for the lower paid workers in the gig economy especially those in public facing roles."
Sarah Ashberry: “Yes, I think they certainly are at higher risk because the pandemic has impacted people in a really unequal way and there are those of us who are able to just switch to working from home and essentially hide out here safely without having to do any interaction and there are lots of people, both employees and workers, whose job has meant that they were unable to do that. The sorts of claims that people might have would be, for example, if you were delivering a meal to somebody and you had not been given sufficient PPE and then you had complained about that to the manager and then been told that you weren't needed for shifts the following week. In that kind of scenario you might then bring a claim to say that you've suffered a detriment, i.e. you'd been passed over for shifts and paid work and you felt that that had been prompted by the fact that you've raised a concern.”
Joe Glavina: “So I guess the message to employers going forward is make sure you think about your workers as well as your employees?"
Sarah Ashberry: “Yes, absolutely. You need to be really checking that all that you're doing around health and safety is applied to the worker group as well as the employee group. I imagine quite a lot of employers are already doing this.”
There had been a lot of speculation around whether the government would appeal the High Court's ruling against them back in November – they'd gone very quiet after that - but it looks as though they have been persuaded they would lose. On 17 March BEIS it became clear when BEIS laid the Order extending section 44. It comes into force quite soon, on 31 May.