Health and Safety Detriment Protection to Extend to ‘Workers’


30 April 2021

By Josh Fresle

An employee is someone who works under the terms of an employment contract.  In comparison,  the definition of a worker is wider and includes any individual who works for a business, whether under an employment contract or other type of contract (but is not self-employed).

Presently, Section 44 of the Employment Rights Act 1996 (ERA 1996) protects employees against detriment (for example, disciplinary action) by their employer in certain health and safety circumstances. This includes absence or proposed absence from work due to a reasonable belief that attendance at work would put them in serious and imminent danger (section 44(d)); and taking or proposing to take appropriate steps to protect themselves or others in the reasonable belief that there is a serious and imminent danger (section 44(e)).

This is especially relevant in the current climate because of the rise in staff being concerned about travelling to and/or being in the workplace during the COVID-19.

The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) Order will insert a new provision into the ERA 1996 extending the protection of sections 44(d) and (e) of the ERA 1996 to include workers from 31 May 2021.

This change is a result of the decision in R (Independent Workers' Union of Great Britain) v Secretary of State for Work and Pensions and another [2020], where the High Court held that by limiting the protections to only employees, the United Kingdom had failed to properly implement the EU Health and Safety Directive.

Employers will need to take care when dealing with concerned staff raised or acted on health and safety grounds, especially since it is likely that once the provisions come into force that more workers will seek to rely on them.

This is not legal advice; it is intended to provide information of general interest about current legal issues.

For further information, please get in touch with our employment discrimination solicitors in Chelmsford, or fill in our online enquiry form for a quick response.