It's an interesting case, widely reported, but has limited relevance to private sector employers. That’s our take on the High Court’s recent decision in the case brought against the government by the small but very active trade union the IWGB which represents mainly low-paid and gig economy workers. The ruling, in favour of the union, says the UK government has failed to properly implement EU health and safety law. How has it failed? By restricting protection from detriment on health and safety grounds to “employees” when exactly the same protection extends to the broader category of “workers”. It is a significant decision because it potentially gives workers, as well as employees, the right to leave work, or refuse to come into work, due to a reasonable belief in serious and imminent danger. Personnel Today looks at how this affects gig workers and quotes representatives from the union who say the decision means the government must now change UK law to bring it into line, and that meanwhile employers should offer the same protection, notably PPE, to all their staff regardless of status. People Management quotes a government spokesperson saying they acknowledge the ruling and will formally respond to it soon. An appeal is a possibility but, perhaps more likely, the government could simply take steps to change the law post-Brexit, post 31 December, to keep the legislation's focus on employees only by expressly excluding workers. The health and safety law at the centre of this case is section 44 of the ERA ’96. It provides that all employees have a right not to be subjected to any detriment for leaving or refusing to come to work in circumstances where they have a reasonable belief they are in “serious and imminent danger”. So the High Court is looking at section 44 and saying that protection extends equally to workers. So where does this leave UK private sector employers? To help with that I spoke to Anne Sammon who joined me by video-link:
Anne Sammon: “I think the decision is very interesting from a legal perspective, but I don't think it has as much practical relevance for most of our clients as you might imagine from what's been made out in the HR press. That’s because, essentially, the decision may have found that workers should be covered by section 44 but until the government changes the legislation employers are in a situation where that isn't the position vis-vis them, and so I think for a lot of organisations it won't actually make a practical difference. I think the other thing that's really important to flag is the fact that workers have whistleblowing protection and often, where we see health and safety cases, we will see workers who aren't covered by section 44 bringing a whistleblowing claim and saying that they were subjected to detriment as a result of raising legitimate concerns about health and safety. So if you're an employer and you have someone who comes forward with a health and safety concern, or a concern that they're not working in a safe working environment, then irrespective of whether or not they have section 44 protection, you can very easily find yourself in whistleblowing territory. So from a practical perspective, I think employers need to treads very carefully even without this decision."
Joe Glavina: “When you say whistleblowing territory, Anne, what’s the significance of that?”
Anne Sammon: “One of the one of the unique aspects of whistleblowing territory is that an employee who is a whistleblower can seek interim relief in the employment tribunal and what that essentially means is that very quickly an employer can find themselves in a tribunal hearing where the tribunal is assessing the merits of a claim and potentially saying, actually, I'm going to order you employer to continue employing this person until the point at which we have our final hearing. That's a particular concern at the moment when we know that tribunal hearings are being somewhat delayed as a result of COVID-19, and also a lack of resource within the employment tribunal system where there could be a delay of one or two years before you actually reach final hearing. So in that case the employer has to continue to pay the employee from the point of the decision on the interim relief piece right the way up until that final hearing and that's really expensive. Also, the other thing about whistleblowing cases is that we're looking at uncapped compensation. So if you have an individual who says, I'm never going to work again, you can very quickly be in territory of looking at hundreds of thousands or even, I've seen cases, where we're talking about millions of pounds being claimed by an individual.”
A final point. This was a pretty high-profile success for the union and as a result we think it is likely that employers will now face increased pressure from trade unions moving forward. So if you recognise a trade union, you may find that face tougher consultations with your union safety reps on the back of this case.