Extension of the Protection from Detriment in Health & Safety Cases to workers

Advice  |   19 March 2021

Section 44 of the Employment Rights Act 1996 (“ERA”) currently provides that an employee has the right not to be subjected to any detriment by their employer on the ground that; the employee left, or refused to return, to any dangerous part of the employees place of work, or that the employee took, or proposed to take, appropriate steps to protect themselves or other persons from the danger.

Reliance on the above provision of the ERA has increased significantly over the past year as a result of employees being concerned about being in the workplace throughout the coronavirus pandemic and the risk that this poses to themselves, or their family members.

Government advice continues to be that people should work from home if they are able to do so and this is not expected to be amended until June, at the earliest. It is therefore particularly important that employers are aware of section 44 of the ERA, and the protection that it provides. If an employee is able to work from home and reasonably believes that there is an imminent threat of serious danger if they were to attend their place of work, an employer should allow the employee to work from home.

If an employee is unable to work from home, and refuses to attend their place of work, and then alleges that they have been subject to a detriment by their employer, there are several points a Tribunal will look at when determining whether there has been a breach of section 44 of the ERA. The Tribunal will consider not only the belief of the employee and whether it was reasonably held, but whether the danger was serious and imminent. In respect of the current pandemic it is likely that a Tribunal will take into consideration case numbers and infection rates, when determining the seriousness of the danger. The employee must also demonstrate that they have been subject to a detriment to be successful in a section 44 claim. A detriment is anything that puts the employee at a disadvantage when compared to their colleagues and could be, for example, unilateral amendments to their working terms and conditions or their salary not being paid in response to their refusal to attend work. The employee will need to establish a link between the detriment suffered and their protected actions in order to be successful.

The recent case of R (on the application of the IGWU) v Secretary of State for Work and Pensions has prompted the Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021. This Order extends the protection for employees to also cover workers and will apply to detriments that take place on, or after, 31 May 2021. An employer must therefore be aware that the protections afforded by the ERA are soon going to cover a much wider group of individuals in the workplace. Employers should continue to ensure that they have an up to date Risk Assessment in place, engage with their workers about the practices that they have in place to protect them and what they are doing to provide a healthy and safe working environment, and continue to follow government advice in connection with home working.


If you need assistance or advice on the contents of this article, please contact the Employment Team at Thackray Williams LLP on 020 8290 0440 or visit our website at www.thackraywilliams.com

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