‘Workers’ Are Workers Too! Protection from Health & Safety Detriments Extended to Workers
Key Contact: Claire Knowles
Author: Adam McGlynn
Health and safety concerns have dominated the 2020/21 zeitgeist, and with good reason. In a year of tragedy and uncertainty, it has been difficult to determine how best to protect ourselves and each other without losing our sense of community and purpose. Oftentimes contradictory guidance has left businesses and staff to reach their own conclusions on the level of danger posed by COVID-19, and what measures might be appropriate. As expected, the past year has seen a greater prevalence of staff taking action on the premise of health and safety concerns, highlighting an inconsistent approach to ‘employees’ and ‘workers’ under UK law which has now been addressed.
What is a ‘worker’?
The term ‘worker’ takes its own meaning under UK employment law and includes not just employees but also individuals who undertake to personally provide services for a business, where the business is not a customer or client of the individual’s business or profession (as would be the case with self-employed contractors). This threshold is easier to satisfy than that of full ‘employee’ status and workers are provided with fewer rights by comparison.
Health and Safety Protections
The EU Health and Safety Framework Directive (EU H&S Directive) provides that workers who take appropriate steps to avoid serious and imminent danger cannot be placed at a disadvantage by their employer as a consequence. However, when the EU H&S Directive was transposed into domestic law, the UK version only provided protection to ‘employees’, thereby excluding other ‘workers’ from protection if they take steps to prevent or reduce risks to their health and safety in the face of serious and imminent danger at work. The High Court has recently held that such an interpretation of the EU Directive is incorrect, and this protection ought to be extended to workers.
R (IWUGB) v Secretary of State for Work and Pensions
In the High Court, Chamberlain J noted the disparity between protection for workers and employees and concluded that the UK Parliament had erroneously excluded workers form such protection. As a result, the Court held that the UK “has failed properly to implement the Framework Directive,” by excluding workers from protection.
What does this mean?
In light of this judgement, new regulations have been implemented to extend protection from health and safety detriments to workers, not just employees – The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021). Workers should not feel pressured to expose themselves to unnecessary health and safety risks on the basis of their worker status as they now have equal protection against detriments and can, therefore, take appropriate action to protect themselves without fear of adverse consequences.
If you would like to read about whether fear of COVID-19 could be a reasonable excuse for refusing to attend work, you can read more on this topic here.
If you would like to know more about health and safety rights and obligations in the workplace, please feel free to contact our Employment Team who are standing by and happy to help.