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

Lord Bhatia Excerpts

Tuesday 27th April 2021 Grand Committee

[Lord Bhatia (Non-Afl) [V]]

My Lords, as the Explanatory Memorandum states, this SI has been prepared by the Department for Business, Energy & Industrial Strategy, or BEIS. It amends Section 44 of the Employment Rights Act 1996. The Act currently gives employees the right not to be subjected to a detriment by their employer for leaving or refusing to return to their workplace or for taking steps to protect themselves in circumstances of danger which they reasonably believe to be serious and imminent. This amendment will repeal Section 44(1)(d) and (e) and insert a new provision at Section 44(1A) which will provide other employees and limb (b) workers with the right not to be subjected to detriment in health and safety cases. The territorial application of this instrument is to England, Wales and Scotland.

Following the judicial review brought by the Independent Workers’ Union of Great Britain against the Secretaries of State for BEIS and the Department for Work and Pensions, this order is being introduced in response to the High Court’s judgment. The High Court found that the UK had failed to fully implement two EU directives in domestic law, as protections were applied only to employees, while the court held that they should also extend to limb (b) workers. Limb (b) workers tend to have a more casual employment relationship and are entitled to a basic set of rights such as the minimum wage and holiday pay.

As a result of the High Court judgment, the Government have committed to updating the legislation quickly to ensure clarity as to workers’ rights and will consult directly key trade unions, ACAS and the citizens advice bureaux in preparation for employers and workers contacting their organisations.

This is an important instrument to protect workers from bad employers who have used zero-hours contracts and other tactics to exploit workers.