In December we reported that a trade union had won its High Court battle against the UK Government for failing to properly implement 2 EU directives into UK law: the EU Health and Safety Framework Directive and the Personal Protective Equipment Directive.
The government had only implemented these in relation to employees. The High Court ruled that workers should also have been protected.
The government didn't appeal the result and has now drafted new legislation correcting one of the issues raised, which will take effect from 31 May.
From that date, the law will protect workers (as well as employees) who reasonably believe there is a serious and imminent danger to their health and safety that they can't reasonably be expected to prevent. This means they can leave or refuse to return to the workplace, or take other appropriate steps to protect themselves or others. If they do, they must not suffer any detriment – i.e. you can't penalise them.
What this means for you
The new protection can apply in any health and safety situation, but it's likely to be particularly relevant to COVID-19. That's because the Coronavirus Act 2020 explicitly labels coronavirus as a serious and imminent danger.
That just leaves the question of whether a worker's belief in the danger is reasonable. As always, this will depend on the circumstances. However, it'll likely be more difficult for a worker to claim this if you:
- properly follow all government guidelines on making your workplace COVID-secure,
- actively police any measures you put in place, and
- clearly communicate all of this to staff.
Although the change in law doesn't come in until 31 May, it's a good idea to start applying it now. That's because there's a chance that courts and tribunals could follow the High Court's ruling when considering incidents that happened before then.
Note also that workers already have protection under whistleblowing laws. Take seriously any complaints from them about the safety of working conditions and don't use it as grounds for any retaliation or other detrimental action.
The government hasn't yet taken action over the other issue in the original case, the Personal Protective Equipment Directive. However, it's safest for you to assume that this will soon also apply to workers and to provide them with adequate PPE, if the circumstances require it.