Protection from detriment in health and safety cases extended to workers

Workers who refuse to go to work because of health and safety fears will be protected from detrimental treatment from their employers.

The draft Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 comes into force on 31 May 2021.

It extends the protection against detrimental treatment to workers who leave or refuse to attend the workplace in circumstances they reasonably believe are a serious and imminent danger, and which they cannot reasonably be expected to avert.

The protection from detriment also extends to workers who take steps to protect themselves or other persons if they believe there is a health and safety threat.

Under previous iterations of the legislation, this protection was only afforded to employees. The amendment means that those classified as workers are now entitled to this protection.

Fiona Mendel, a senior associate at law firm Seddons, said: "The new legislation will undoubtedly address the loophole for workers who refuse to attend the workplace due to concerns over their health or safety by providing added protections should they suffer a detriment by refusing to return.

"Whilst the legislation does not give workers a blanket right to refuse to return to work, should they possess a 'reasonable belief' that they (or others) would be in danger, the onus would rest on the employer to show it took steps to mitigate against the risk of any perceived threat."

Rhona Darbyshire, partner and head of the employment team at law firm Cripps Pemberton Greenish, said: ""Prior to this amendment taking place, under Section 44 of the Employment Rights Act 1996, only employees were granted immunity from detriment or dismissal following steps they had taken to protect themselves or others in health and safety circumstances. The extension will allow workers and employees to leave/refuse to return to work or take steps to protect themselves and others where they feel danger is 'serious and imminent'.

"In practice this amendment is unlikely to have a major impact on businesses that have a well-integrated workforce of both employees and workers. However for those businesses who rely solely or predominantly on workers, or where their workers have a different workplace to their employees, this change may result in those businesses needing to further engage with their workers and implement additional safety measures."

Mendel said that employers needed to ensure that any requests to return to the physical workplace during the Covid-19 pandemic are reasonable and that adequate safeguards have been put in place to reduce the risk of infection.

"Risk assessments must be undertaken as a minimum and staff should be consulted with as to the outcome of those assessments and what steps they intend to take, complying with the latest government guidance and other industry specific measures to make the workplace safe," she said.

"Staff should be encouraged to discuss any hesitancies, taking into account their personal circumstances. This will make it harder for workers and employees to claim their fears in returning to the workplace, to be reasonable."

Earlier this year an employment tribunal found that an engineering firm had been entitled to dismiss an employee who refused to return to work until lockdown restrictions were lifted because he believed his workplace posed a "serious and imminent" danger to his children. The employee had not provided any evidence to back up his claim that his workplace was unsafe and the tribunal found that he could have followed guidance around social distancing and hand washing.