Workers to gain Health and Safety protection previously extended to employees from 31st May 2021

From 31st May 2021 workers as well as employees will be afforded statutory protection from health and safety detriment. The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) Order 2021 (Regulations) grants workers s44 Employment Rights Act 1996 (ERA 1996) protection. Workers under s.44 ERA 1996 will from 31st May 2021 be treated equally to employees 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”.

Presently only employees and not workers are protected against detriment under s44 ERA 1996. The disparity in protection dates back as far as 1992 (deadline when the Directives were transposed).

Workers will not however benefit from s.100 ERA 1996 protection, which permits an employee to bring an unfair dismissal claim. Workers do not have unfair dismissal rights.

The change in regulations was triggered in late 2020, coming to light in the High Court’s decision in the case of R (on the application of the Independent Workers’ Union of Great Britain) v Secretary of State for Work and Pensions. The High Court judged that the government had not properly implemented various EU health and safety protections.

From 31st May 2021 workers will be able to bring an employment tribunal claim that they have been subjected to a health and safety detriment. The extension of the Regulations to workers will likely coincide with a shift in workers returning to their normal places of work and therefore employers should be alive to the risk of such claims being brought by not just employees but workers from 31st May 2021.

Read more from Talent Toute about the ‘new normal for hiring’ which references working arrangements here


This article does not provide a full statement of the law and you are advised to take specific legal advice before taking any action based on the information contained herein.

This article should be read alongside the current Government guidance and guidance from the HSE.

By Consilia Legal