Draft Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021

(Limited Text - Ministerial Extracts only)

Wednesday 28th April 2021 General Committees

[The Chair]

Before we begin, I remind Members to observe social distancing and to sit only in places that are clearly marked. I also remind Members that Mr Speaker has stated that masks should be worn in Committee. Hansard colleagues would be most grateful if Members could send their speaking notes to [e-mail].

[The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Paul Scully)]

I beg to move,

That the Committee has considered the draft Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021.

It is a pleasure to serve under your chairmanship, Mr Davies. I will begin with some important background to the draft order, which was laid before the House on 17 March 2021. The UK is unique in having three employment statuses for employment rights—self-employed, limb (b) worker, and employee—when most other countries, including within the EU, have just the self-employed and employee categories.

Limb (b) workers have a more casual employment relationship than employees and are entitled to a basic set of rights, such as minimum wage and holiday pay. Limb (b) status allows for much needed flexibility in the labour market. Sections 44(1)(d) and 44(1)(e) of the Employment Rights Act 1996, which implements the EU health and safety directive into domestic law, give employees the right not to be subject to detriment by their employer for leaving or refusing to return to their workplace and the right not to be subject to detriment for taking steps to protect themselves or others in circumstances of danger which they reasonably believe to be serious and imminent.

In May 2020, the Independent Workers Union of Great Britain brought a judicial review against the Secretaries of State for Work and Pensions and for Business, Energy and Industrial Strategy. Following comprehensive proceedings, the High Court found in November 2020 that the UK had not fully implemented the EU health and safety framework directive into section 44 of the 1996 Act and that some protections applied only to employees, while the Court held that they should also extend to limb (b) workers.

The claim succeeded only in part, and the Court accepted that the UK was not required to extend unfair dismissal to limb (b) workers and had properly implemented the general obligations of the health and safety framework directive. The Government accepted the judgment and therefore proposes this draft order, which will extend the protection from detriment in health and safety cases to all workers, not just employees, as has previously been the case.

The Court also held that the Personal Protective Equipment at Work Regulations 1992 should also be extended to limb (b) workers, and I am assured by officials at the Health and Safety Executive that work is under way to consult on the regulations and to extend them to all workers through an additional statutory instrument due to be laid later in the year.

These important protections have proved even more essential for employees who have continued to work through the pandemic and for those returning to work as businesses emerge from the lockdown. They ensure that employees have the legal protection they need to act to ensure their own safety and the safety of others without fear of suffering detriment for doing the right thing. That includes protecting them against being denied promotion or training opportunities.

Having considered the Court judgment, we agree that limb (b) workers should also benefit from the protections. That does not represent a major change as limb (b) workers represent a small share of the workforce. However, it does not make it any less important, as such workers undoubtedly have a significant role to play in our economic recovery from the covid-19 pandemic. That is why the Government want to clarify the UK’s understanding of the health and safety framework directive by amending section 44 of the 1996 Act. We are committed to protecting workers’ rights and supporting workers through the challenges created by the pandemic, ensuring that the UK remains the best place in the world to work. Clarifying our interpretation of the directive in the light of the High Court judgment will mean that more people are protected by the provisions.

Turning to the scope of the SI, the changes made to section 44 of the 1996 Act will apply in England, Scotland and Wales, because employment law is devolved in Northern Ireland. We have, however, discussed this SI with the Northern Ireland Administration, who have laid legislation to the same effect, which will come into operation in parallel subject to the Northern Ireland Assembly’s procedure.

Given that the limb (b) workers represent a small share of the workforce, the direct cost to business of the change is expected to be very low. We also do not expect the amendment to have a significant and disproportionate cost or impact in any region across England, Scotland and Wales.

This is a necessary change in order to clarify the Government’s interpretation of the health and safety framework directive. It will ensure that all workers are covered by the protections and that we build back better from the pandemic by maintaining the highest standards when it comes to workers’ rights in the UK labour market.

--- Later in debate ---

[Paul Scully]

I appreciate the spirit in which this debate has taken place and the agreement on the reason for the court case. It is right that the courts were able to consider all the details of the case before coming to a clear conclusion. As I said, the claim succeeded only in part, with the High Court accepting that the UK was not required to extend unfair dismissal, for example, to limb (b) workers and had properly implemented the general obligations of the health and safety framework directive, and we chose not to appeal that judgment. It is important that the Court can do its work on interpretation to build up the case law. As I mentioned before, officials at the Health and Safety Executive assure me that work is much under way to extend protections under the personal protective equipment directive to limb (b) workers as well. To align with the Court ruling, there is no reason for further delay.

As for the employment Bill, I look forward to debating it with the hon. Gentleman and to working through the Bill when parliamentary time allows. We will see when that discussion happens. I do not have the Queen on speed dial, so we will have to see what happens on 11 May.

In conclusion, I underline once more that the draft order will help workers across the country during the coronavirus pandemic and beyond, providing all limb (b) workers and employees with the right not to be subjected to detriment in health and safety cases. I commend the statutory instrument to the Committee.

Question put and agreed to.