The coronavirus pandemic has shone a large spotlight on issues of health and safety at work, and the steps that individuals can take if they believe their employer is not providing a safe workplace.
Please note: the information contained in this legal update is correct as of the original date of publication.
The coronavirus pandemic has shone a large spotlight on issues of health and safety at work, and the steps that individuals can take if they believe their employer is not providing a safe workplace. It has also highlighted a discrepancy in wording in the UK legislation as to the protection offered to workers, compared to employees.
In a case brought by the Independent Workers’ Union of Great Britain against the Secretary of State for Work and Pensions and the Secretary of State for Business, Energy and Industrial Strategy, the Union argued that European health and safety provisions, and associated provisions relating to PPE, had not been correctly implemented into UK law as the protections were not wide enough to cover workers.
The High Court considered the various definitions of “worker” and “employee” under EU and national law and concluded that the European Directives relating to health and safety and the provision of PPE apply to all workers, save for domestic servants, and not just employees.
The secondary argument run on behalf of the Secretaries of State was that although some UK provisions referred to employees only, there were other applicable provisions within UK law which provided comparable protection to workers, and that those alternative provisions were sufficient to implement the Directives.
In respect of the Health and Safety at Work Act 1974, whilst there are provisions which are specific to employees, there are also separate provisions which relate to anyone who is not an employee but who may be affected by the way in which the employer runs his undertaking. This would therefore include workers. The main difference between the two sets of provisions is that, in respect of employees, the duty relates to health, safety and welfare, whereas for non-employees, the duty relates to health and safety only - welfare is not mentioned. However, given that welfare is not a requirement of the European Directives, the High Court felt that the protection offered to workers was comparable.
Under s.44 of the Employment Rights Act 1996, employees have a right not to be subjected to a detriment for certain health and safety reasons (see our previous update on health and safety issues here for further information). Counsel for the Secretaries of State argued that the “whistleblower” provisions provided comparable protection for workers as protected disclosures can include disclosures about health and safety issues. This argument was not accepted by the High Court – the Directives required workers to be protected regardless of whether they made a disclosure. There was therefore a finding that UK law had not correctly implemented EU law in respect of workers.
By contrast, s.100 of the Employment Rights Act 1996 (which protects employees from dismissal), did not need to be extended to workers – workers do not enjoy protection from unfair dismissal within the UK and so there was no obligation to confer protection specifically for health and safety reasons.
Lastly, the High Court considered the issue of the provision of PPE. It is worth highlighting that the Court was not considering any individual circumstances – and in particular, was not considering whether any specific individual should have been provided with PPE to protect against Covid-related risks. Instead, it was simply considering whether the European Directive in respect of PPE had been correctly implemented into UK law. It held that it had not – whilst a failure to provide PPE may also constitute a breach of the Health and Safety at Work Act 1974, the general obligations under that Act were not deemed to be sufficient to comply with the specific PPE obligations under European law.
This decision will have important ramifications for a significant number of workers, particularly those within the gig economy (such as taxi drivers, or those dealing with deliveries) on whom heavy reliance has been placed during the coronavirus pandemic.
A full copy of the judgment can be found here.
Official statistics show that 15,336 claims which included a complaint of age discrimination were received at the Employment Tribunals between March 2020 and March 2021.
The outcome of the Employment Tribunal claim brought by Gulnaz Raja against Starling Bank Limited (1) (Starling), and Matthew Newman (2) was reported last month.
In the Autumn Statement delivered on 17 November, rises to the National Living Wage and National Minimum Wage rates were announced, to take effect from 1 April 2023.
The World Cup kicks off in Qatar on Sunday 20 November 2022, with the final taking place on Sunday 18 December 2022. Undoubtedly, this is a huge sporting event, and many employees will be keen to show their support for their favourite teams. However, due to the time difference, start times for the matches are between 10 a.m. and 7 p.m. UK time, which could have an impact on employers if employees who wish to watch the matches are scheduled to work.
Settlement agreements are commonplace in an employment context and are ordinarily used to provide the parties to the agreement with certainty following the conclusion of an employment relationship.
Where an employee appeals against their dismissal under a contractual appeal procedure and their appeal is successful, reinstatement to their previous role is automatic and does not require approval or agreement from the employee.
Two directors of a construction company were fined after failing to ensure the safe removal of asbestos from a plot of land. On 14 and 15 November 2021, Directors Anthony Sumner and Neil Brown, of Waterbarn Limited were involved in the uncontrolled removal of asbestos material from a plot of land in Grasscroft, Oldham.
An engineering company in Tyne and Wear was fined £20,000 after a worker fractured his pelvis and suffered internal injuries after falling through a petrol station forecourt canopy, whilst he was replacing the guttering.
Settlement agreements in an employment context are ordinarily used to provide both parties with certainty following the conclusion of an employment relationship – but what happens when there is alleged discrimination after entering into a settlement agreement?
NHS England has issued an updated (publication 11 October 2022) suite of Complex Change guidance about how it will assure and support proposals for complex change that are reportable to it. New and (where it is still in force) existing Complex Change guidance are as follows.
A few weeks ago we brought you news that following the Government’s mini-budget it was confirmed that the off-payroll working rules (known as “IR35”) put in place for public and private sector businesses from 2017 and 2021 would be scrapped from April 2023.
In Mogane v Bradford Teaching Hospitals NHS Foundation Trust the Employment Appeal Tribunal (EAT) considered whether it was fair to dismiss a nurse as redundant on the basis that that her fixed-term contract was due to expire before that of her colleague.
The majority of people do not feel the need to embellish their CV to get that coveted position and move on up the career ladder. Their worthiness and benefit to the hiring organisation are easily demonstrated through the recruitment process – application, psychometric testing, selection day or interview.
The Health and Safety Executive (HSE) have announced they will be carrying out a programme of inspections to primary and secondary school establishments from September 2022. The inspections will assess how schools are managing the risks from asbestos and meeting the Duty to Manage requirements, set out in Regulation 4 of the Control of Asbestos Regulations 2012.
In July 2022, the Supreme Court handed down its long-awaited Judgement in the case of Harpur Trust v Brazel relating to the correct calculation of statutory holiday pay for part year workers. This decision has implications for all part year workers on contracts which subsist all year round, whether their hours are normal or irregular.
The Government has announced a change to the categorisation of “small” businesses to reduce the amount of regulatory compliance (or “red tape”) required. Currently, SMEs (those with fewer than 250 employees) are exempt from certain regulations – such as the obligation to comply with gender pay reporting. With effect from 3 October, these exemptions will be widened to apply to businesses with fewer than 500 employees.
In University of Dundee v Chakraborty, the Employment Appeal Tribunal (EAT) considered whether a first draft of a grievance report could retrospectively be deemed to be privileged.
The Chancellor’s recent mini-budget provided a significant announcement for business as it was confirmed that the off-payroll working rules (known as “IR35”) put in place for public and private sector businesses from 2017 and 2021 will be scrapped from April 2023.
The Government has published the Retained EU Revocation and Reform Bill which, if passed, provides for the revocation of all “EU-derived subordinate legislation” (i.e. UK statutory instruments which were introduced to implement EU law) and retained direct EU legislation on 31 December 2023, unless legislation is specifically introduced to save them.
On 20 July 2022, the Supreme Court issued its long-awaited judgment in the case of Harpur Trust v Brazel, upholding the decision of the Court of Appeal. For those of you familiar with this case, you will know that it concerns the statutory leave requirements for part-time and part-year workers. For schools and academies whose workforce consists of a variety of types of part-time and part-year workers, this case is one that must be understood before any changes are applied. Come and join Emma Hughes, Head of HR Services as she puts questions to Ian Deakin, Employment Partner, and Sarah Linden, Senior Associate.
The Employment Appeal Tribunal’s recent decision in the case of Mr Michael Cowie & Others v Scottish Fire and Rescue Service provides a useful insight into favourable - or unfavourable - treatment in the context of discrimination claims.
This month, HM Treasury issued a consultation on Administrative Control Process for Public Sector Exits with draft guidance. They’re proposing to introduce an expanded approvals process for employee exits and special severance payments, and additional reporting requirements. If approved, the proposals will impact public sector bodies and those that do not have a specific right to make exit payments.
In Wierowska v HC-One Oval Limited, the Employment Tribunal had to determine whether the Claimant’s beliefs in relation to Covid-19 vaccines amounted to religious beliefs for the purposes of the Equality Act 2010.
Janice Walsh applied for a job with Domino’s Pizza, hoping to secure a role as a Delivery Driver. However things quickly took a turn for the worse during her initial interview, with the very first question that she was asked relating to her age. Ms Walsh was ultimately informed that she had not been successful in her application.
