Extension of health and safety protection to workers and possibly contractors
UK employment law recognises 3 separate categories of individuals in terms of employment rights; employees, who have the full range of rights; self-employed independent contractors, who have few, if any rights and the intermediate category of ‘workers’ who have some rights (for example the right to be paid the National Minimum Wage and the right to paid holiday) but not the full suite of rights afforded to employees.
‘Workers’ typically (although not exclusively) work in the gig economy (see for example the recent Supreme Court decision that Uber drivers are ‘workers’).
One of the rights which employees have (but workers do not) is the right not be subjected to a detriment for leaving or refusing to return to their workplace in circumstances of danger which they reasonably believe to be serious and imminent, or for taking steps to protect themselves.
At the end of 2020, the High Court (in the case of R (on the application of the Independent Workers’ Union of Great Britain) v Secretary of State for Work and Pensions) held that confining such protection to employees was a breach of the EU Health and Safety Framework Directive (No.89/391). It therefore issued a declaration that the UK had failed to properly transpose the Directive into UK law. This has effectively forced on the Government the need to change the law.
Therefore, the Government has laid an Order before Parliament that will amend S.44 of the Employment Rights Act 1996 to extend protection from health and safety detriment to workers (not just employees). The Order is currently awaiting Parliamentary approval and is due to come into force on 31 May 2021.
As the Supreme Court’s decision in the Uber case shows, when considering whether an individual is a worker or a self-employed contractor the courts will seek to give effect to the purpose of the employment rights legislation i.e. to protect those where the putative employer exercises control over what the individual does – that means that many of those consultants who have been working on a direct contract basis i.e. not through a personal service company (PSC) may well be ‘workers’ with the protections (including those to health and safety protection referred to above).
"As we start to think about returning to the workplace over the next few months, there may be those who do not want to return back to the workplace because of fears about COVID related health and safety and that may include contractors."
So, what should you be doing about this. Given the changes to the IR35/off payroll working rules due to come into force on 6 April 2021 you may well have been looking at the position of those supplying services though PSCs (and if you haven’t, you really should!) but given the decision in the Uber case and the extension of health and safety protection, you should really look at updating your health and safety policies and analysing the risks of those directly engaged contractors actually being workers
Get in touch
If you'd like more information on this update, or any employment matters please contact Jon Taylor.