Summary
Under current employment law, there are three categories of individuals providing their services in the job market:
- Employee.
- Worker.
- Self-employed independent contractor.
There are statutory definitions for the first two categories, although these are not comprehensive and the current position has been substantially defined through case law. An individual who is neither an employee nor a worker will be self-employed for employment law purposes.
A worker is an individual that:-
- performs work or services for another party,
- personally,
- not as part of their own business undertaking.
Section 44 of the Employment Rights Act 1996 (ERA 1996) currently protects employees only from being subjected to a detriment by their employer in specific health and safety cases. From 31st May this protection will be extended to workers.
Sections 44 (detriment) and 100 (dismissal) of the Employment Rights Act 1996
Section 44 of the ERA 1996 protects employees only from being subjected to a detriment (action short of dismissal) by their employer in specific health and safety cases including in the following circumstances:
- Absence or proposed absence from work due to a reasonable belief that attendance at work would put them in serious and imminent danger (and they could not reasonably have been expected to avert that danger) (section 44(d), ERA 1996).
- 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), ERA 1996).
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.
Background
In R (Independent Workers’ Union of Great Britain) v Secretary of State for Work and Pensions and another [2020] EWHC 3050, 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 under section 44 of the Employment Rights Act 1996 (ERA 1996) to employees. The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 is due to come into force on 31 May 2021.
