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

• Citation: S.I. 2021/618
• Sections: 7

Section 1 Citation and Commencement

This Order may be cited as the Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 and comes into force on 31st May 2021.

Section 2 Amendments to the Employment Rights Act 1996

The Employment Rights Act 1996 is amended as follows.

Section 3 Amendment of Section 44

In Section 44 (health and safety cases)—

(a) in subsection (1), omit paragraphs (d) and (e);

(b) after subsection (1) insert—

(1A) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his or her employer done on the ground that—

(a) in circumstances of danger which the worker reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, he or she left (or proposed to leave) or (while the danger persisted) refused to return to his or her place of work or any dangerous part of his or her place of work, or

(b) in circumstances of danger which the worker reasonably believed to be serious and imminent, he or she took (or proposed to take) appropriate steps to protect himself or herself or other persons from the danger.

(c) in subsection (2)—

(i) for “(1)(e)” substitute “(1A)(b)”;

(ii) for “an employee” substitute “a worker”;

(d) in subsection (3)—

(i) for “An employee” substitute “A worker”;

(ii) for “(1)(e)” substitute “(1A)(b)”;

(iii) for “the employee” substitute “the worker”;

(e) in subsection (4) after “does not apply where the” insert “worker is an employee and the”.

Section 4 Amendment of Section 48

In Section 48 (complaints to employment tribunals)—

(a) in subsection (1), for “44” substitute “44(1)”;

(b) after subsection (1) insert—

(1XA) A worker may present a complaint to an employment tribunal that the worker has been subjected to a detriment in contravention of section 44(1A).

(c) in subsection (2), after “subsection (1),” insert “(1XA),”.

Section 5 Amendment of Section 49

In Section 49 (remedies)—

(a) in subsection (1), after “section 48(1),” insert “(1XA),”;

(b) in subsection (2), after “Subject to subsections” insert “(5ZA),”;

(c) after subsection (5) insert—

(5ZA) Where—

(a) the complaint is made under section 48(1XA),

(b) the detriment to which the worker is subjected is the termination of his or her contract, and

(c) that contract is not a contract of employment,

any compensation must not exceed the compensation that would be payable under Chapter II of Part X if the worker had been an employee and had been dismissed for the reason specified in section 100.

Section 6 Amendment of Section 205

In Section 205 (remedy for infringement of certain rights) after subsection (1) insert—

(1YA) In relation to the right conferred by section 44(1A), the reference in subsection (1) to an employee has effect as a reference to a worker.

Section 7 Transitional and Saving Provision

(1) A worker is not to be regarded as having been subjected to a detriment in contravention of section 44(1A) of the Employment Rights Act 1996 if the date of the relevant act or failure to act, or the last of a series of similar relevant acts or failures to act, occurred before commencement day.

(2) If the date of the last of a series of similar relevant acts or failures to act occurs on or after commencement day, the fact that a relevant act or failure to act in that series occurred before commencement day does not prevent it from being taken into account in determining whether the worker has been subjected to a detriment in contravention of section 44(1A) of the Employment Rights Act 1996.

(3) The repeal by this Order of section 44(1)(d) and (e) does not prevent a complaint under section 48 that an employee has been subjected to detriment in contravention of section 44(1)(d) or (e) from being presented or continued on or after commencement day if the date of the relevant act or failure to act, or the last of a series of similar relevant acts or failures to act, occurred before commencement day.

(4) In this paragraph—

“commencement day” means the day on which this Order comes into force;

“relevant act or failure to act” means—

in relation to section 44(1) of the Employment Rights Act 1996, an act, or deliberate failure to act, by an employer done on the ground set out in section 44(1)(d) or (e) of that Act;

in relation to section 44(1A) of the Employment Rights Act 1996, an act, or deliberate failure to act, by an employer done on the ground set out in section 44(1A)(a) or (b) of that Act.

(5) Section 48(4) of the Employment Rights Act 1996 applies to paragraphs (1), (2) and (3) as it applies to section 48(3) of that Act.