The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 (SI 2021/618) will come into force on 31 May 2021 and extends the protection against detriment relating to health and safety matters to workers.
The existing protection only applied to employees.
Section 100 of the ERA 1996 protects employees by providing that dismissal shall be automatically unfair where the reason for the dismissal is one of the following reasons:
- Dismissal for leaving or staying away from dangerous workplace (section 100(1)(d)). Where an employee reasonably believes that they are in serious and imminent danger and they could not be reasonably expected to avert it, they are protected from dismissal if they leave, propose to leave, or refuse to return to the workplace while the danger persists.
- Dismissal for taking action to prevent danger (section 100(1)(e)). Employees who, in circumstances of danger that they reasonably believed to be serious and imminent, took or proposed to take appropriate steps to protect themselves or other persons from danger, are protected from dismissal on that basis.
Action short of dismissal on the grounds set out above could amount to a detriment which is unlawful under Section 44 of the Employment Rights Act 1996.
The extension of the right to include workers will be achieved by the insertion of new section 44(1A) into the ERA 1996, and related provisions dealing with enforcement of the new right.
The amendments align the relevant provisions of the ERA 1996 with the judgment in R (Independent Workers’ Union of Great Britain) v Secretary of State for Work and Pensions and another  EWHC 3050 (Admin), in which the High Court held that the UK had failed to properly implement Article 8(4) and (5) of the EU Health and Safety Framework Directive (89/391/EC) by limiting protection from detriment on health and safety grounds to employees and therefore excluding workers from protection.
A worker will not be regarded as having been subjected to a detriment in contravention of the new section 44(1A) if the date of the relevant act or failure to act, or the last of a series of similar relevant acts or failures to act, occurred before 31 May 2021.
The Acas guidance Working safely during coronavirus (COVID-19) has been updated to state that, from 31 May 2021, workers will have protection from experiencing any detriment if they reasonably believe being at work or doing certain tasks would put them in serious and imminent danger.