Employees have long been protected from suffering a detriment and/or being dismissed for reasons relating to health and safety. However, Employment Tribunal claims of that nature were, historically, rare.
Inevitably, the pandemic has cast a spotlight on health and safety, and we have seen an increasing number of health and safety detriment (and automatically unfair dismissal) claims over the last year or so.
There are various bases to bring a health and safety detriment claim, which are set out in section 44 of the Employment Rights Act 1996 (ERA). However, recent claims have primarily been brought on two grounds:
- The “concerned individual”
where an employee “brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety”; and
- “Protective action”
“in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he… refused to return to his place of work”.
The “protective action” claims have generally involved an employee leaving or refusing to return to work due to a reasonable belief that their work places them or others in “serious and imminent” danger, due to the pandemic.
On 31 May 2021, the protection from suffering a detriment for reasons relating to health and safety was extended to workers, as well as employees, by the snappily titled Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021.
These Regulations amend section 44 of the ERA to replace “employees” with “workers” but also add a new section 44(1A) which gives workers specific protection from “any detriment” “in circumstances of danger” that the worker “reasonably believed to be serious and imminent”, which they could not avert, if they:
- leave, propose to leave or refuse to return to the workplace; or
- take or propose to take appropriate steps to protect themselves or others from the danger.
This new wording is very broad and makes claims on this basis increasingly likely.
The Regulations came into existence following the High Court’s ruling in R v Secretary of State for Work and Pensions, which held that the UK had failed to properly transpose health and safety directives into domestic law.
The decision is a triumph for all workers, but especially workers in particularly precarious roles in the gig-economy, whereby social-distancing and homeworking is simply not an option. The decision feeds into the broader debate of how the pandemic has had, and continues to have, an unequal impact across the country, dividing us into those able to work from home and those who cannot. Those who do not benefit from the luxury of home offices will find this change in the law of some comfort when considering returning to the workplace.
So how can you protect yourself against these claims?
- Take any reports and/or complaints regarding health and safety seriously, investigate them properly and ensure that the employee/worker who raised them is not disadvantaged as a result.
- An employee/worker can take steps to protect ‘others’ from serious and imminent danger.
This is not confined to colleagues and could, therefore, extend to taking steps to protect family members.
- Remember that what constitutes a serious and imminent danger will differ from one employee to another.
For example, an employee/worker who is clinically vulnerable or who has family who are clinically vulnerable may be in a different position from an employee/worker who is less at risk from COVID-19.
- The key thing is whether the employee’s/worker’s belief is reasonable- it does not matter if you, as employer, disagree.
Even if your instruction for an employee/worker to attend work is reasonable, an employee/worker may still be able to show that they had a reasonable belief in serious and imminent danger, thereby rendering it reasonable for them not to attend work.
Please seek advice if you reach that sort of impasse with an employee/worker to avoid triggering a claim.
- “Danger” is interpreted broadly and could arise from another employee. This could be relevant if an employee/worker believes that a colleague is symptomatic.
- Remember that this may cover dangers arising from commute (as well as the workplace), so try to support alternative means of travel to work, if possible.
Review and update your health and safety policies, as required, and ensure that managers understand this important change in the law and the increased risks your business faces as a result.
To read the legislation, click here.
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.