Legal spotlight - February 2019

SHORTLY BEFORE Christmas, the UK government unveiled a revamp of employment laws designed to protect workers’ rights and address the development of a gig economy. The Good Work Plan contains the government's "vision for the future of the UK labour market" and sets out its planned reforms to implement the recommendations of the Taylor Review of Modern Working Practices. 

The work of that review was based on a single overriding ambition - essentially good work for all - acknowledging amongst other things that: "while having employment is itself vital to people’s health and well-being, the quality of people’s work is also a major factor in helping people to stay healthy and happy, something which benefits them and serves the wider public interest." 

The review focused on seven key approaches towards "fair and decent work with realistic scope for development and fulfilment". Included in this was recognition that:

"The shape and content of work and individual health and well-being are strongly related. For the benefit for firms, workers and the public interest we need to develop a more proactive approach to workplace health."

Responding to the findings of a survey by the Institute of Occupational Health and Safety ("IOSH") on gig economy workers, temps and workers on zero-hours contracts in which they reported receiving fewer protections for their health and wellbeing at work than their permanent, full-time colleagues, Mr Taylor had backed IOSH’s call for a ‘day one agreement’ between employer and non-permanent workers that includes a pledge to protect the worker’s health and wellbeing. Although stopping short of that, the reforms announced promise greater protections aimed at, amongst other things, improving worker wellbeing.

Among the reforms to be introduced in new legislation, the government plans to repeal the so-called ‘Swedish derogation’, which allows agency workers to be employed on cheaper rates than permanent counterparts beyond 12 weeks; quadruple maximum employment tribunal fines for employers who are demonstrated to have shown malice, spite or gross oversight from £5,000 to £20,000; and extend the holiday pay reference period from 12 to 52 weeks to give seasonal workers paid time off.

The legislation also extends the right to a ‘day one’ written statement of rights, which will now include detail on rights such as eligibility for sick leave and pay. Presenteeism remains a concern, with workers turning up for work on occasions when their health is compromised to the extent that wellbeing and safety may be too.

Although generally welcomed, some feel that the government should have gone further. The British Safety Council, for example, has said that they "consider that much more needs to be done to offer protection around the principle of 'zero hours' contracts and… urge the government to review the potential and actual impact of such working conditions on the health, safety and wellbeing of workers involved." 

The devil will of course be in the detail, but the government has for the first time placed equal importance on both quality and quantity of work, describing this as a "groundbreaking approach" which "will have significant benefits, both for workers and employers" and undertaking to identify a set of metrics to measure the quality of work in the UK labour market.

Health as well as safety issues have been a key priority for both the Health and Safety Executive ("HSE") (through its Helping Great Britain Work Well campaign, confirmed and enhanced in its "Go Home Healthy" initiative and in its sector and health priority plans) and the UK government for some time now. Prime Minister Theresa May has spoken of mental health and its inadequate treatment as one of the "burning injustices" of today's society, the economic and social cost of which is put at some £105 billion. In particular, Mrs May has spoken of the needto do more to support mental wellbeing in the workplace, with the government commissioned Stevenson/Farmer report concluding that the UK "faces a significant mental health challenge at work", and making various recommendations to achieve their vision of "dramatically reducing the proportion of people with a long-term mental health condition", which the government has encouraged all employers to take on board. 

It is often easier to focus on safety and preventing accidents, forgetting that obligations in relation to health and wellbeing also (already) exist; the Health and Safety at Work etc Act 1974, the foundation of the current system, imposes obligations in respect of both. The UK government's Good Work Plan, together with the HSE's stated aims and growing public support for improved health, both physical as well as mental, herald a new dawn in safety and health compliance.

The penalties for breach of those obligations are the same as for safety breaches and cannot be ignored – particularly as multi-million pound fines are increasingly being handed down for health and safety offences irrespective of any harm caused.

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com