Health and safety detriment protection to be extended to workers

The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 has come into force in order to extend protection for health and safety detriments to workers (not just employees).

An employee can now claim in a tribunal with the position of health and safety detriment if they believe they are in serious or imminent danger. This protection from detriment addresses a loophole in the system giving workers increased protection from health and safety threats to either themselves or others. This act doesn’t give workers an outright excuse to not attend work however it does protect them when there is a genuine threat.

We believe the change follows a High Court decision last autumn in a case involving the gig workers union and the IWGB where the government had failed to implement the EU Health and Safety Framework Directive properly into UK law by omitting workers from s44 protection. This act was rarely used prior to the Coronavirus pandemic, however since March 2020 employees have become more anxious to work seeing as the risk factor has increased.

The new legislation is being used more frequently by employees worried about travelling to or being in work during the Covid-19 pandemic. This is something employers need to be aware of and ready to discuss with their employees offering a structured and empathetic procedure. Of course each employee is different and therefore as experienced HR professionals, we’ve outlined what you should do and what your options are when it comes to managing staff absence here.

Moving forward we would advise treating on a case-by-case basis listening to each individual’s concerns and what they believe would alleviate their fears. You can then assess the risks and devise a plan from there. We would recommend carrying out a risk assessment to show due diligence as this will help you to work safely during the COVID-19 pandemic.

As award-winning HR professionals, we understand that this change could spark questions. If you need any help or advice surrounding health and safety detriment protection, please don’t hesitate to get in touch.

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