This statement is being published in line with aratrust’s charitable objective of improving public health. The statement aims to make workers aware of (i) their legal rights regarding health and safety, and (ii) ways to persuade employers, if necessary, to recognise workers’ rights and respond positively and effectively. Please note: aratrust believes that the following information is correct at the time of publishing but the government introduces new legislation and amends existing legislation periodically. Please contact your trade union representative or seek legal advice if you believe you have claims.
The Secretary of State made a Serious and Imminent Threat declaration on 10 February 2020 formally declaring that Coronavirus posed a serious and imminent threat to public health.
1. The Current Situation
With regard to Coronavirus, the Government has moved in England from a position of “Stay at home” to “Actively encouraging” returns to work and the re-opening in stages of “non-essential” shops and other commercial enterprises.
During “lock-down”, available figures from various sources indicate that between one third and one half of the workforce of 33 million continued travelling to their normal workplace. These workers are now being joined in stages by other workers.
The law is on the side of those exposed to risks at work. Although aratrust and some experts believe that health and safety law needs to be strengthened, current legislation, as it stands, imposes a duty on employers to prevent serious and imminent danger, not just to individual workers but also to their families and to the general public.
Like other viruses and micro-organisms, Coronavirus, is considered a “harmful substance” by the Health and Safety Executive (HSE), one of the bodies enforcing health and safety. Consequently employers have a duty to protect their staff from it. https://www.hse.gov.uk/coronavirus/ppe-face-masks/index.htm
The main safety issues for people in workplaces are risk assessments*, distancing measures, testing, adequate PPE (Personal Protective Equipment) if required, cleaning equipment, screens, adequate time to change and wash, clean hand-washing and sanitising facilities, single direction routing, core hours staggering, and all the other proper methods of infection control. From workers’ experiences so far, it is very clear that, on these points alone, there are very different views on what is “satisfactory” and what is “highly risky”.
*If workers are in a “vulnerable” group or have / had serious health conditions including asthma, diabetes, heart conditions and/or are from a BAME community, this needs to be taken into account in a risk assessment.
To feel safe, workers need to assure themselves that a proper risk assessment for their workplace has been carried out and effective methods of infection control are in place, especially as there is no comprehensive test-track-and-trace system in place at the time of writing.
Workers can try and do this individually or collectively by asking their employer questions but they will be in a much stronger position if they do so through a trade union, which will be able to provide support, legal advice and representation, including experienced Health & Safety Representatives.
Workers’ experience during the pandemic shows that they are more likely to have less risky and dangerous working conditions and may avoid being treated disadvantageously if they are able to raise their concerns collectively and, especially, if they do this through trade unions.
2. Workers Most At Risk
The ONS (Office of National Statistics) has calculated Coronavirus death rates by occupation. Overall, the workers most at risk have been construction workers and cleaners, followed by health care, leisure and other service occupations, then sales and customer service staff, then administrative and secretarial staff. Other workers more at risk because of workplace exposure to the public or the unwell, include taxi drivers and bus drivers.
Four-and-a-half times as many security guards have died from Coronavirus as in the rest of the population. Taxi drivers, chauffeurs and chefs have been three-and-a-half times more likely to die. Bus and coach drivers have been over two-and-a-half times more likely to die, and sales and retail assistants twice as likely to die from Coronavirus.
As aratrust has already documented on this website, there are disproportionately more deaths among people from Black, Asian and other Minority-Ethnic (BAME) communities than from the White English community.
3. Employers’ Duties
The Government’s 8 Workplace Guidance documents published on 8th May 2020, state that it is the legal duty of every employer to:
- make a proper risk assessment
- provide properly fitting PPE free of charge, if required by the risk assessment
- keep the workplace and workstations safe
- not force workers into unsafe workplaces.
What workers also need to know is that it is a criminal offence if employers do not comply with these duties.
When an employer considers that (s)he has done what is “reasonable” and that it would be too much trouble or expense to do more, even though risk remains, then workers will find it very difficult to negotiate changes without acting collectively or without the support of a trade union.
4. Your Legal rights
Health and safety law for Great Britain is made up of:
- Acts of Parliament
- statutory instruments (regulations)
Under health and safety law, employers have a responsibility to protect workers and others from risk to their health and safety. Both criminal and civil law apply to workplace health and safety. Employers must protect workers and others from getting hurt or ill through work.
Employees are also protected if they take “appropriate steps” to protect themselves or others from a danger they reasonably consider to be “serious and imminent”.
Whether steps are “appropriate” depends on “all the circumstances” including the
knowledge of the employee “and the facilities and advice available to the employee.
If employers do not comply:
- a regulator, the Health and Safety Executive (HSE) or the local authority, may take action against them under criminal law
- the person affected may make a claim for compensation against non-compliant employers under civil law
If employers do not comply with a regulation relevant to their work, they’ll normally be committing a criminal offence and could:
- be issued with verbal or written advice
- be issued with an improvement or prohibition notice
- be prosecuted
Health and safety law is mostly enforced by the Health and Safety Executive (HSE) or the local authority (LA). Responsibility for enforcement depends on the type of workplace. Allocation is based on the main activity carried on at the premises.
In general, LAs are the main enforcing authority in retail, wholesale distribution, warehousing, hotel and catering premises, offices, and the consumer/leisure industries. For your workplace, you can find out who enforces health and safety law. Further guidance on enforcement allocation can be found in the operational guidance Health and Safety (Enforcing Authority) Regulations 1998: A-Z guide to allocation.
Health and safety laws for Great Britain
(I) The Health and Safety at Work etc. Act 1974 (HSWA) is the primary piece of legislation covering occupational health and safety in Great Britain. It’s sometimes referred to as HSWA, the HSW Act, the 1974 Act or HASAWA. (Certain work activities have specific regulations, such as those for construction work or working with asbestos.) The act sets out the general duties which:
- employers have towards employees and members of the public (see Appendix 1)
- employees have to themselves and to each other
- certain self-employed people have towards themselves and others
You can read this on legislation.gov.uk
Under HSWA, no one has to have been harmed for an offence to be committed – there only has to be a risk of harm.
The most important thing is what employers actually do to manage and control risk in the workplace. Paperwork alone does not prove that they’re complying with the law.
(II) The Provision of Personal Protective Equipment Regulations 1992
states: “Every employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective.” So, if other steps are insufficient to control the risk of infection, then PPE must be provided. http://www.legislation.gov.uk/uksi/1992/2966/regulation/4/made
(III) The 1996 Employment Rights Act section 44
This law protects workers from punishment by their employers if they absent themselves from the workplace or take appropriate steps to protect themselves “in circumstances of danger which the employee reasonably believed to be serious and imminent.” http://www.legislation.gov.uk/ukpga/1996/18/section/44
(iv) The 1996 Employment Rights Act sections 47 and 103A
This law protects workers from being disadvantaged or dismissed by their employers if they report information which they believe puts other people’s health and safety in danger. The report must be made in the public interest. It is known as ‘whistleblowing’. http://www.legislation.gov.uk/ukpga/1996/18/section/47B/england+wales
Civil law – compensation claims
- Under civil law, if someone has been injured or made ill through an employer’s negligence, workers may be able to make a compensation claim against the employer. Employers can also be found liable if someone who works for them has been negligent and caused harm to someone else.
- If a claim is successful, a court may make a judgment against the employer and award money (‘damages’) to compensate for the pain, losses and suffering caused. This is not the same as a conviction under criminal law.
- The median amount of compensation given is around £5,000 and the likelihood of workers returning to their jobs following unfair dismissal has been calculated as less than 1 per cent of all successful cases.
5. Difficulties exercising your legal rights
If you show that you are aware of your rights in law then you are in a better position to have a safer working environment.
You will be in an even stronger position if you can do this through a trade union or at least collectively. Understanding some of the vague phrases of the laws can be extremely difficult so you will have more chances of succeeding if you have the backing of a trade union.
Problems can occur when an employer considers (s)he has done what is reasonable and that it would be too much trouble or expense to do more, even though risk remains. The words of the regulations, approved by Parliament, set out what is necessary to be done. (These obligations are not stated in the government guidance.)
In all workplaces, unionised and non-unionised, it is essential that workers know how, and to whom, they should complain if they feel unsafe at work. Employers, by law, should assess work-related hazards, and the results of such risk assessments should be made available to employees.
The TUC* and most trade unions have guidance on risk assessing and workers exercising their rights should understand the principles and demand that they have a say.
*The TUC (Trades Union Congress) has 48 affiliated trade unions, bringing together more than 5.5 million working people. It has about 200 members of staff.
If possible, trade union representatives should get involved in risk assessment – a tool used to compare actual risks with what is acceptable and then agree actions to make the work environment safe.
Some of the laws are only normally enforceable in workplaces where a trade union is recognised for collective bargaining purposes, and where recognised trade union health and safety representatives can demand consultation and inspection rights.
For those without the benefit of a trade union behind them, workers are left to fall back on individual enforcement actions through tribunals or appeals to the relevant regulatory body tasked with overseeing health and safety at work, the Health and Safety Executive (HSE) or the local authority.
Consequently, some workers may benefit from national trade union agreements, others from workplace trade union organisations. Workers who are not trade union members may have to take the step of collective action to be in a position to successfully negotiate with employers. Workers have the right to stop work, according to the Health and Safety at Work Act 1974 (footnote 1), if they feel it is unsafe. Such actions are better done collectively.
6. How a TU can help you
Trade unions play a leading role in highlighting the dangers and the inadequacies of protections available to workers in many of Britain’s workplaces.
Successful action combining collective action, legal advice and representation, has been taken by trade unions to protect their members during the Coronavirus pandemic. These trade unions include the NEU, RMT, UNITE, FBU and GMB.
The Royal College of Nursing has advised nurses that they can refuse to continue to work if adequate PPE is not provided. This advice was echoed by the UNITE trade union. Firefighters, organised in the FBU, have previously had to resort to walking out. Walking out in these circumstances does not need a ballot. It is entirely lawful under existing safety laws.
7. How to join a TU
You have a legal right to join a union if you wish. It’s illegal for an employer to disadvantage you in any way just because you are a union member.
To join a union, go to: https://www.tuc.org.uk/join-union
8. How aratrust can help
Aratrust can help you with this if you have a difficulty using computers to access the website or need language support. We have interpreters for many different languages spoken in Britain.
HSWA 1974 – General duties of employers to their employees (as at 21.10.2019)
(1) It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.
(2) Without prejudice to the generality of an employer’s duty under the preceding subsection, the matters to which that duty extends include in particular –
(a) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health;
(b) arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;
(c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees;
(d) so far as is reasonably practicable as regards any place of work under the employer’s control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks;
(e) the provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work.
Health and Safety at Work etc. Act 1974 (c. 37) Part I – Health, Safety and Welfare in connection with Work, and Control of Dangerous Substances and Certain Emissions into the Atmosphere Document Generated: 2019-10-21
Changes to legislation: Health and Safety at Work etc. Act 1974 is up to date with all changes known to be in force on or before 21 October 2019. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes
(3) Except in such cases as may be prescribed, it shall be the duty of every employer to prepare and as often as may be appropriate revise a written statement of his general policy with respect to the health and safety at work of his employees and the organisation and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision of it to the notice of all of his employees.
(4) Regulations made by the Secretary of State may provide for the appointment in prescribed cases by recognised trade unions (within the meaning of the regulations) of safety representatives from amongst the employees, and those representatives shall represent the employees in consultations with the employers under subsection (6) below and shall have such other functions as may be prescribed.
(5) Repealed in1975
(6) It shall be the duty of every employer to consult any such representatives with a view to the making and maintenance of arrangements which will enable him and his employees to co-operate effectively in promoting and developing measures to ensure the health and safety at work of the employees, and in checking the effectiveness of such measures.
(7) In such cases as may be prescribed it shall be the duty of every employer, if requested to do so by the safety representatives mentioned in subsection (4) above, to establish, in accordance with regulations made by the Secretary of State, a safety committee having the function of keeping under review the measures taken to ensure the health and safety at work of his employees and such other functions as may be prescribed.