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

Lord Hendy Excerpts

Tuesday 27th April 2021 Grand Committee

[Lord Hendy (Lab) [V]]

My Lords, I join the applause for the Minister and the Government for introducing this statutory instrument, but the Government need to go further than this limited extension of rights. They should also remedy the unjustifiable exclusion of various classifications of workers for other key rights. A worker’s legal status determines the suite of rights to which she is entitled. Many employers seek to arrange for their workers the status to which the fewest rights attach—hence the profusion of litigation, most recently in Uber and in the case brought by the IWGB as to what the status of given workers is. The law on workers’ status is both complex and illogical, a situation that benefits only employers and lawyers.

There are now in fact five classifications of worker, by which I mean those who earn their living by supplying their labour to another. They are: the employee, with full statutory rights; the limb (b) worker, with limited statutory rights—this designation relates to Section 230(3)(b) of the Employment Rights Act; the false self-employed worker, with next to no statutory rights; the personal service company worker, who has no statutory employment rights other than hypothetically against the company of which she is the owner; and, lastly, the genuinely self-employed, in business on her own account with her own customers or clients but without statutory employment rights.

We need legislation to sort this out which adopts a binary solution, with, on one side, workers entitled to all statutory employment rights and, on the other, those genuinely self-employed, in business on their own account with their own customers or clients. I hope the Minister will tell us that the long-awaited employment Bill will do that and that it will be announced in the Queen’s Speech in May. In case not, I have entered such a Bill in the Private Members’ Bills ballot. Otherwise, anomalies will persist, as this statutory instrument shows. It gives protection against detriment for refusing dangerous work to both employees and limb (b) workers, but protection against dismissal for the same refusal—Section 100 of the Employment Rights Act—is reserved to workers only while limb (b) workers remain excluded.