Health & Safety - 'protection from detriment' extended to workers

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Construction & Infrastructure Article

07 May, 2021

Currently, under s44 of the Employment Rights Act 1996, an employee can bring a tribunal claim if they have been subjected to a detriment because they reasonably believed that being at work would place them (or someone else) in serious, imminent danger. Employees also enjoy protection from unfair dismissal under such circumstances (s.100 Employment Rights Act 1996).

The protection outlined is presently confined to employees only. However, an Order is currently before Parliament which proposes to amend s.44 Employment Rights Act 1996 to extend this protection to all workers.

This is as a result of a case brought by the Independent Workers Union of Great Britain following multiple requests for assistance from their members who were part of the gig economy and who has raised issues such as the lack of PPE, failure to implement social distancing during deliveries and the provision of sanitising and cleaning products.

If Parliament approve the Order (which we expect it will), it will come into force on 31 May 2021 and all workers will be protected against detriment under section 44 of the ERA from 31 May 2021. The Order however does not extend the protection from dismissal under s.100 ERA.

Until recently, claims relating to the existing 'protection from detriment' provisions have been comparatively uncommon. However, as a result of the coronavirus pandemic, there has been a greater focus on health and safety at work and emphasis in the media on the steps that employees can take if they feel that their employer is failing to provide them with a safe place of work.

Considering the impact of the pandemic and the increased number of challenges of this nature, employers should take steps to ensure that all workers are adequately protected. Specifically, in the coming months now that lockdown is easing, and certain restrictions have lifted which have led to an increase in people returning to the workplace.

From an employer's perspective the key actions and priorities to reduce risks of a claim will be the following:

  • Keep updated with government advice on coronavirus and keeping safe in the workplace;
  • Ensure that all staff comply with social distancing and stay 2 metres apart where possible;
  • Carry out risk assessments and identify areas where staff may be exposed to the virus;
  • Review risk assessments regularly and respond to changes in external and internal circumstances;
  • Consult and involve people in the steps you're taking to manage the risk of coronavirus in your workplace;
  • Keep your workplace clean and encourage frequent handwashing to reduce the potential for coronavirus to spread;
  • Ensure that PPE is provided where necessary;
  • Make sure you consider the risk to workers who are particularly vulnerable to coronavirus and put controls in place to reduce that risk;
  • Be careful about how you deal with/respond to any concerns raised by your workforce around health and safety.

For more information contact Abigail Lynch in our Employment & HR department via email or phone on 0330 207 4469. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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