15th July 2021

The COVID-19 pandemic has caused a rise in claims brought by employees on the grounds that their employer failed in their duty to provide a COVID-secure workplace.

Section 44 of the Employment Rights Act 1996 protects UK employees from being subjected to a detriment by their employer when they are absent, or propose to be absent, from work due to a reasonable belief that attendance would put them in serious and imminent danger. An employee will also be protected if they take ‘appropriate steps’ to protect themselves or other persons in these circumstances.

The Facts

Members of the Independent Workers’ Union of Great Britain (IWUGB) – a trade union founded by predominantly low-paid, migrant workers and workers in the “gig economy” – found that during the COVID-19 pandemic, their employers were not providing them with adequate personal protective equipment, had failed to implement social distancing measures and were not providing sanitising and cleaning products.

In the case of R (Independent Workers’ Union of Great Britain) v Secretary of State for Work and Pensions and another [2020] EWHC 3050 (Admin), the High Court found that the UK had failed to properly transpose EU law into domestic law to protect workers from a health and safety detriment.

Although the UK has now left the EU, the decision was made before the end of the implementation period. The case has huge significance in the current COVID-19 pandemic, with many companies reliant on “gig economy” workers.

Protection for Workers

New legislation came into force on 31 May 2021 to extend to workers the protection under Section 44 of the Employment Rights Act 1996.

The new legislation does not give workers a blanket right to refuse to return to work. However, should workers possess a ‘reasonable belief’ that they (or others) would be in danger at work, then the onus rests on the employer to show it took steps to mitigate against the risk of any perceived threat.

However, if an employer’s act or failure to act occurred before 31 May 2021 and is not part of a series of similar relevant acts or failures to act that continued on or after 31 May 2021, a worker will not be able to rely on the new legislation to bring a claim.

Next Steps

Irrespective of restrictions easing in England on 19 July 2021, employers still have the same statutory duties to ensure health and safety at work and this will require careful thought and planning.

If you need any assistance with the issues raised in this article or wish to discuss what practical measures you can take to protect your workforce, then please do not hesitate to contact a member of our Employment team or email our Head of Employment, James Baker at jamesbaker@leeandthompson.com or 020 3073 7600.