Under section 44 of the Employment Rights Act 1996, employees have long held a statutory right not to be subjected to any detriment by their employer if they refuse to attend work, or leave work, if they reasonably believed their place of work posed serious and imminent danger which could not be reasonably averted.
They also have a right not to be subjected to a detriment if in such dangerous circumstances the employee took reasonable steps to protect themselves or any other person from that danger. Employees have a right to bring a claim against their employer if they are subjected to a detriment for these reasons, and claim compensation. Also, under section 100 of the same Act, if an employee is dismissed solely or principally for these reasons, they will also be regarded as automatically unfairly dismissed, and do not require the usual two year qualifying period of service with that employer to be able bring an unfair dismissal claim.
With numerous examples of Covid-19 outbreaks in the workplace, and the difficulty in acquiring adequate PPE particularly during the early stages of the pandemic, employers have very much been conscious of the possible risks of claims by employees under sections 44 and 100 where inadequate health and safety measures are implemented, and their place of work is not made “covid-secure”, as well as other liabilities for personal injury and prosecution under health and safety legislation.
However, the section 44 and 100 rights only extended to “employees”, meaning individuals those with irregular ad hoc working patterns, such as zero-hour and other gig economy workers, did not have the same statutory protections against any detriment or dismissal if they reasonably refused to work in dangerous workplaces. This meant employers could terminate such casual contracts with little legal risk if they refused to attend work, for example if there was inadequate social distancing measures or PPE provision implemented by the employer.
A judicial review action brought was brought last year by the Independent Workers Union of Great Britain against the Department for Work and Pensions on behalf of its members, who are couriers, drivers and other gig economy workers. These workers were allegedly exposed to dangerous working practices, such as lack of PPE, failure to ensure social distancing during deliveries, failures to provide sanitising and other cleaning products and lack of measures to ensure Covid-19 test samples for delivery were packaged safely and securely.
In November 2020, the High Court found that section 44 failed to properly implement the full requirements of health and safety EU directives into UK law by limiting the protection against detriments to employees, and not extending this protection to individuals with “worker” status, such as those engaged on an ad hoc basis within the gig economy. Had this issue and the pandemic emerged after 31 December 2020, the obligation on the High Court to declare section 44 as being in breach of EU law would not have occurred, due to the end of the Brexit transition period and end of the indirect effect of EU directives in UK law.
In response to this outcome, the UK Government has now published legislation which will amend section 44 to extend the protection against detriment for health and safety concerns to all workers, and no longer a right confined to those with full employee status. However, this change in the law is due to come into force on 31 May 2021, meaning some unscrupulous employers remain able to legally subject workers to detriments and dismissals for these reasons leading up to this date. Notably, the protection against dismissal for these reasons under section 100 has not been extended to workers, on the basis that the general right not to be unfair dismissed can only be brought by employees, not workers. Workers who are dismissed, or more likely have offers of work dry up in response to them refusing or leaving work for reasonable health and safety concerns, will therefore have to establish that this was a detriment principally because of these health and safety reasons, which may be evidentially difficult if employers can present other economic or business reasons why work opportunities had ended or significantly reduced.
This extension of protection is clearly to be welcomed, as it gives individuals working in front line roles and essential to the continuation of the economy and society during the lockdowns a degree of protection, and will also hopefully prevent some of the most vulnerable workers feeling they have no choice but to be exposed to high risks of infection and have no ability to refuse to work in dangerous circumstances. Not only will this measure hopefully improve the health and safety of those workers, but will in turn reduce the level of wider transmission in society and particularly within vulnerable communities where gig economy workers are more common.
