Health and Safety law for unorganised workers returning to work

As a retired trade unionist I have been helping out my union branch by commenting, from time to time, on risk assessments which have been prepared by the employer to deal with the hazard posed by covid-19 in the work environment. Union activists need to be on the ball now to use our health and safety legislation (so many of the requirements of which are more often honoured in the breach than in the observance).

Where our employers recognise trade unions, who have safety representatives, then we can – and should – hold management’s feet to the fire by challenging inadequate risk assessments and insisting upon the implementation of control measures, bearing in mind that the employer’s overarching duty is to do “what is reasonably practicable” to protect health and safety.

With unions only representing a minority of workers in this country, many people may be facing returning to an unorganised workplace – but health and safety law applies to those workers (and their employers) too (and may even provide an opportunity to organise and unionise those workplaces).

All employers have the duty, under section 2 of the Health and Safety at Work Act, to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees. This means that practicable safety measures should be adopted except where they are ruled out because they involve grossly disproportionate sacrifices (in terms of cost or inconvenience).

In order to identify measures which should be taken, employers have a duty, under Regulation 3 of the Management of Health and Safety at Work Regulations 1999, to carry out a risk assessment (and – if they employ five or more people – to record it in writing). Regulation 3(3)(b) says that risk assessments must be if there has been “a significant change in the matters to which it relates”. The covid-19 pandemic is obviously such a “significant change” so new risk assessments are required for any employer proposing to resume work.

Even in an unorganised workplace with no trade union this risk assessment is not just something for the employer to do quietly by themselves – by law they have to consult employees. Regulation 3 of the Health and Safety (Consultation with Employees) Regulations 1996 requires employers to consult employees about “the introduction of any measure at the workplace which may substantially affect the health and safety of those employees” (the consultation must either take place directly with employees or with “representatives of employee safety” elected in accordance with Regulation 4).

Regulation 5(1) provides that the employer must, if consulting directly with employees, “make available to those employees such information, within the employer’s knowledge, as is necessary to enable them to participate fully and effectively in the consultation” – so the law requires employers to carry out risk assessments, write them down and share them with their employees (so that the employees can comment upon them and say what they think).

The Health and Safety Executive guidance on the 1996 Regulations makes clear that employers have to consult employees “in good time” which means that (in relation to re-opening after the coronavirus shutdown for example) the employer needs to give employees information in advance, allow time for them to consider and respond to that information and give themselves time to respond to whatever employers may say.

Employees who receive this information can then decide what to do, bearing in mind their legal rights under section 44 of the Employment Rights Act 1996. This bars the employer from imposing a detriment upon an employee where “in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work.” (s44(1)(d)).

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 state – in the introduction to the Regulations - that they have been made “in response to the serious and imminent threat to public health which is posed by the incidence and spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) in England.”

The Government – in proposing those Regulations – and Parliament – in passing them have told us all that there is a “serious and imminent threat” from the current pandemic. Therefore anyone whose employer tells them to go back to work without appropriate safety precautions can reasonably believe that they face “serious and imminent danger” which (if appropriate safety measures have not been taken by the employer) they could not reasonably be expected to avert. If they therefore refuse to return to their place of work – their employer would be acting unlawfully if they imposed any detriment upon them (by threatening to discipline them, or refusing to pay them).

Section 44 is no panacea. If an employer breaks this law in an individual case the employee might have to go to an employment tribunal for compensation (months later) – but a group of employees who understand the law set out above are in a strong position to insist that their employer does what is reasonable to protect their health and safety.

Employees can insist that the employer shows them written risk assessments before returning to work and – if those risk assessments don’t seem to recommend adequate safety precautions then the employees can point out to the employer that they are aware of their rights and will only come back when adequate precautions are in place.

A group of employees, acting together, can enforce their legal rights much more effectively than any lawyer – and if they go on to join a trade union together then asserting their rights as they return to work now could be the beginning of getting better treatment at work for the future.