Working after Lockdown: Section 44 Claims Explained

Balal Qaiser
Employment Law Solicitor

Although you may not have heard of Section 44 of the Employment Rights Act 1996 before, this piece of legislation is gaining popularity and is being considered as one of the cornerstones of Employment Law and Health and Safety at Work legislation.

Section 44 gives employees and workers in England and Wales the legal framework to question the suitability and appropriateness of health and safety measures put in place by employers, without the fear of repercussions or suffering detriment (harm).

Under this piece of legislation, employees and workers can take reasonable steps to protect themselves. For example, this could be by:

  • Refusing to work completely
  • Refusing to enter a specific location of work
  • Taking other steps to protect themselves or others from danger

If you raise a health and safety concern in your workplace, you are protected by law and cannot be subjected to any form of detriment by your employer.

For example:

Whilst the above piece of legislation protects the health, safety and welfare of employees and workers, they must have a genuine and reasonable belief of serious and imminent danger. It’s clear from emerging case law in this area that each case will be determined on its own set of facts, and you will need to demonstrate that at the time of raising the concern, there was a genuine and reasonable belief of serious and imminent danger.

When assessing the employee or worker’s views, the Employment Tribunal will consider:

  • Your own views about the danger
  • What you reasonably knew at the time
  • What information you received about the dangers

Please note, your understanding of any official advice, such as from the Government or NHS England will be taken into account by the Employment Tribunal when determining whether you had a genuine and reasonable belief of danger at the time of raising the concern.

Types of Employees and Workers Who May Face Danger

  • Office employees and workers
  • Restaurant employees and workers
  • Frontline emergency services employees and workers
  • Health care services employees and workers
  • Supermarket checkout employees and workers

If your employer has failed to put in place adequate measures to protect you from the risk of coming into contact with someone who has Coronavirus, or any other danger to your health and safety, you may have a reasonable and genuine fear of serious or imminent harm.  

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How Do I Make a Claim?

If you’re concerned about the appropriateness of any health and safety measures put in place by your employer, or you have a genuine fear of serious and imminent harm, you should first raise your concerns formally with your line manager or a representative from HR. A health and safety concern can be raised verbally, but we always advise raising such concerns in writing so you’ve got evidence if any further problems arise.

Most employers are taking a careful approach in this post-lockdown world and your employer might be willing to work with you to address any concerns that you may have. This could include making necessary reasonable adjustments or putting in place additional measures to protect the health, safety and welfare of you and your colleagues.

If your employer treats you detrimentally because you’ve raised a health and safety concern, you should raise a formal grievance with your employer. Your employer should then follow a formal procedure in investigating and handling your grievance.

If your employer fails to handle your grievance fairly, or doesn’t uphold your grievance and you continue to suffer detriment, you could claim compensation from your employer.

To do this, you need to:

    1. Register your claim with ACAS Early Conciliation
    2. Once your claim is registered with ACAS, a conciliator will contact your employer, offering to resolve the dispute at an early stage
    3. If the dispute remains unresolved at this stage, you can bring a claim against your employer at an Employment Tribunal

Section 44 Detriment Claims can be complex, especially if your employer denies placing you at a detriment or argues that the reason for placing you under a detriment was unrelated to you raising a health and safety concern.

Employment Tribunal Delays

One thing to bear in mind is that the Employment Tribunal is currently under immense pressure, so there could be a delay in your claim reaching a final Hearing. Generally, we estimate an Employment Tribunal Claim to take around 24 months to reach a conclusion.

It’s important to consider all options before making any decisions about pursuing a claim and that you avoid taking any drastic steps such as resigning. Section 44 Detriment Claims are complex and there is no guarantee that your claim will be successful.

This is why it’s best to get expert legal advice as soon as possible. Our Employment Solicitors can advise you on your specific situation and can handle the process for you from start to finish.

Time Limits for Making a Claim

There is a strict time limit of three months less one day from the date you were placed at a detriment to bring a claim at an Employment Tribunal. For example, if you were suspended from work on 10th August as a result of raising a concern, your claim must be registered with ACAS no later than 9th November.

In some cases, it’s possible to bring a claim at an Employment Tribunal outside of this time limit, at their discretion, but this is rare and complex. Because of this, we strongly recommend getting expert legal advice as soon as possible to ensure your position is protected.

If you have any concerns about your safety in the workplace, or you have raised a health and safety concern and have suffered detriment as a result, get in touch with our Employment Law Solicitors today and we’ll be happy to advise you.

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