As the law currently stands, sections 44 and 100 Employment Rights Act 1996 protect employees against detriment (e.g. disciplinary action or suspension of pay) and dismissal as a result of their taking steps to protect themselves or others in certain health and safety situations, including where “in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably be expected to avert, he left or … (while the danger persisted) refused to return to his place of work”.
The government has now issued an Order extending the health and safety detriment protection to workers. The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 will come into force on 31 May, meaning that from that date workers as well as employees will be covered by s44 and so share the right not to be subjected to a detriment if they leave their workplace (or refuse to return to their workplace) because they reasonably believe they are in serious or imminent danger. [Workers do not benefit from s100 because that declares the dismissal of an employee in such circumstances to be unfair, and workers who are not employees do not have unfair dismissal rights].
S44 and 100 usually come into play where employees work in potentially hazardous workplaces, but they have gained new prominence in the last 12 months in the context of the pandemic. You may recall, for example, that some of the teaching unions pointed to these provisions to argue that teaching staff should not be required by the government to return to their place of work at the height of the pandemic unless reassured that it was safe to do so. The same considerations will apply to workers. In particular, since it is clearly the case that the coronavirus poses a “serious and imminent danger” (this was enshrined in law by the Coronavirus Act in 2020, to put the point beyond argument), the battleground will be whether the individual’s belief that he is in that danger in that particular workplace is reasonable (as distinct from real or understandable, which are different things).
Where that danger arises from the requirement to visit certain premises, for example, it will be hard for the worker’s belief to be reasonable for these purposes if the occupier has (i) made them “covid-secure” within the government guidelines, (ii) made it clear that that is the case in its communications/notices to the worker and (iii) not allowed those precautions to be visibly undermined by non-compliance with appropriate precautions by other users of those premises when he gets there. As the R-rate drops it will become harder and harder for workers and employees to claim their fears to be reasonable but the government has nonetheless made it clear in its Spring Response to the virus that progress in reducing that rate, not least through the vaccination programme, should not be used by employer or occupiers of premises to justify dialling back the physical covid-secure measures already being taken.
It is likely that once the provisions come into force we will see workers seek to rely on them in some numbers. More employees may also raise concerns under these provisions as we start coming out of the latest lockdown and businesses and the government start to encourage people back to their physical workplaces. Note, however, that although workers will only gain protection in relation to detrimental acts taken by their employer on or after 31 May 2021, they can already claim the protection of the whistleblowing regime. Therefore pre-May complaints from workers about the safety of working conditions must already be taken seriously and not treated as the grounds for any retaliation or other detriment.