Tag

safety
•July 13, 2021•

‘Workers’ Are Workers Too! Protection from Health & Safety Detriments Extended to Workers

‘Workers’ Are Workers Too! Protection from Health & Safety Detriments Extended to Workers

Key Contact: Claire Knowles

Author: Adam McGlynn

Health and safety concerns have dominated the 2020/21 zeitgeist, and with good reason. In a year of tragedy and uncertainty, it has been difficult to determine how best to protect ourselves and each other without losing our sense of community and purpose. Oftentimes contradictory guidance has left businesses and staff to reach their own conclusions on the level of danger posed by COVID-19, and what measures might be appropriate. As expected, the past year has seen a greater prevalence of staff taking action on the premise of health and safety concerns, highlighting an inconsistent approach to ‘employees’ and ‘workers’ under UK law which has now been addressed.

What is a ‘worker’?

The term ‘worker’ takes its own meaning under UK employment law and includes not just employees but also individuals who undertake to personally provide services for a business, where the business is not a customer or client of the individual’s business or profession (as would be the case with self-employed contractors). This threshold is easier to satisfy than that of full ‘employee’ status and workers are provided with fewer rights by comparison.

Health and Safety Protections

The EU Health and Safety Framework Directive (EU H&S Directive) provides that workers who take appropriate steps to avoid serious and imminent danger cannot be placed at a disadvantage by their employer as a consequence. However, when the EU H&S Directive was transposed into domestic law, the UK version only provided protection to ‘employees’, thereby excluding other ‘workers’ from protection if they take steps to prevent or reduce risks to their health and safety in the face of serious and imminent danger at work. The High Court has recently held that such an interpretation of the EU Directive is incorrect, and this protection ought to be extended to workers.

R (IWUGB) v Secretary of State for Work and Pensions

In the High Court, Chamberlain J noted the disparity between protection for workers and employees and concluded that the UK Parliament had erroneously excluded workers form such protection. As a result, the Court held that the UK “has failed properly to implement the Framework Directive,” by excluding workers from protection.

What does this mean?

In light of this judgement, new regulations have been implemented to extend protection from health and safety detriments to workers, not just employees – The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021). Workers should not feel pressured to expose themselves to unnecessary health and safety risks on the basis of their worker status as they now have equal protection against detriments and can, therefore, take appropriate action to protect themselves without fear of adverse consequences.

If you would like to read about whether fear of COVID-19 could be a reasonable excuse for refusing to attend work, you can read more on this topic here.

If you would like to know more about health and safety rights and obligations in the workplace, please feel free to contact our Employment Team who are standing by and happy to help.

•December 11, 2020•

The Building Safety Fund: 31 December 2020 Deadline

The Building Safety Fund: 31 December 2020 Deadline

Key Contact: Jennifer Butcher

Author: Abby Stephens

In the March 2020 budget, chancellor Rishi Sunak announced that the UK government would provide £1 billion in 2020-2021 to support the remediation of unsafe non-ACM (aluminium composite material) cladding systems on residential buildings 18 metres and over in both the private and public sectors in England, known as the Building Safety Fund (“the BSF”). This is separate to the ACM cladding remediation fund (“the ACM Fund”), which assists with the replacement of ACM cladding systems on private and social residential buildings, the type of cladding used on Grenfell Tower.

The registration process for the BSF opened in June and closed at the end of July 2020, with the application process opening on 1 August 2020, on a “first come, first served” basis and the deadline of 31 December 2020 for such applications is fast approaching.

The BSF is intended to support leaseholders, rather than building owners, with the costs of remediation and can be applied for by private sector building owners where the costs of the works would be recoverable from leaseholders through service charge arrangements, and social sector housing providers who have demonstrated, during the registration process, that the costs of remediation are unaffordable or are a threat to financial viability.  Controversially and despite being challenged, the works must not have been committed to at the time the BSF was announced. From the outset, the BSF has been criticised as not being enough to meet the demands upon it, with the true costs of remediation works expected to be significantly higher than this.

The validation process for applications under the BSF, which involves legal and project related due diligence, is being administered by Homes England and the Greater London Authority (for London properties) who then pass the applications onto the Ministry of Housing, Communities and Local Government to make the ultimate decision based on the validation information provided.

The application process has been slow to date and this is largely due to the lack of preparations made by applicants, combined with detailed information requests and the sheer volume of applications that have been submitted. As of 25 September 2020, the most recent statistics available on the BSF, 2,784 applications had been made, with only 65 of those allowed to proceed to a formal application. However, progress has been made since this time with many buildings being allocated funding in the last few weeks.

Despite progress being made, there are still difficulties with the BSF, for example, where some properties have a mixture of ACM and non-ACM cladding systems, in which case two separate applications need to be made in relation to both the BSF and the ACM Fund. There is also the requirement for contractors to be onsite and for works to have commenced by 31 March 2021, which can be difficult where funding has not been confirmed and/or is insufficient and there is limited contractor availability.

Looking ahead, the government has suggested the BSF will not be extended and it seems that many developments will not be funded. However, it is possible that an alternative scheme will be introduced, but we await confirmation of this.

If you have any questions in relation to the above or cladding concerns generally, please do not hesitate to contact Jennifer Butcher in our Dispute Resolution team.