On Monday a new law comes into force extending to workers the right not to be subjected to detriment in certain health and safety cases. This is the extension of section 44 Employment Rights Act 1996 and, given the pandemic and the focus on health and safety in the workplace, this is a significant development and one HR needs to be alive to.
Before the pandemic section 44 claims were relatively few and far between and, when they did arise, they were only ever brought by employees. Since the pandemic we have seen a sharp rise in these claims and, going forward, those numbers are bound to increase as workers become entitled to bring these claims too. Interestingly, we have noticed the unions and labour groups have been very active in raising awareness of section 44 and generally pushing for employers to be held to account. Labour List, for example, was quickly onto this. Back in May last year they were running the headline ‘Returning to work? Section 44 explained’, flagging the right to bring a claim where employers fail in their duty to provide a safe and secure workplace in circumstances of danger which the individual reasonably believe to be serious and imminent. At that time the protection was restricted to employees.
The change to section 44 has been triggered by a High Court ruling at the end of last year – a judicial review brought by the IWGB union. The union was concerned at the time about the failure by many businesses to adequately protect workers during the pandemic who weren’t getting the PPE that was being given to employees. The High Court declared that the UK had failed to properly transpose European law into UK law. Although workers will remain unable to claim unfair dismissal, from Monday 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 Monday, 31 May, and represents is a victory for the IWGB union that backed the judicial review. Back in March when first knew the change was likely, Sarah Ashberry talked to this programme about the change to section 44 and that High Court action. This is what she said:
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. There 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.”
Incidentally, Sarah appeared on this programme earlier this week talking about the EAT’s decision in Flatman v Essex County Council. That was another health and safety case concerned with the employer’s failure to prevent a back injury. That programme is called ‘Curing’ constructive dismissal reviewed by EAT’ and is available now for viewing on the Outlaw website.