Using Health and Safety law
to defend working conditions*

There are three strands to this approach: health and safety on campus; health and safety while working at home; using health and safety law to defend jobs.

Health and safety on campus - return to work after lockdown

Key points:

• Union health and safety representatives should make the decision on whether it is safe to go back to work, not employers;

• Everyone who can work from home should do so;

• Employers should consult workers about working safely. Check whether there is a local agreement requiring the employer to consult formally with union H&S representatives. Even if there is not, the Employer should “‘consult’ with staff (ask for and consider their views to try and reach an agreement) about returning to work. See ACAS ‘Working safely during Coronavirus’;

• We cannot rely on the law alone;

• H&S Pilot surveys can be very useful ammunition - see this one at Goldsmiths which was followed by one by HR using some UCU questions, including whether people have confidence in senior management to protect health & safety;

• The threat of action from the branch members needs to be ever present. Employers need to be embarrassed, otherwise they do not take action;

• BUT, we must be very careful about wildcat action and withdrawal of labour.

Legal resources

Employers have a legal responsibility to protect employees and people working on site:

• In England, Scotland, and Wales, Employment Rights Act section 44 outlines employees’ rights in health and safety cases; 

• In Northern Ireland, employee rights in health and safety are outlined in Article 68 of the Employment Rights (Northern Ireland) Order 1996;   

• Employers have a legal responsibility to protect employees from stress at work by doing a risk assessment and acting on it;

• Equality Impact Assessments (EIAs) are crucial and push for them if they are not in place - delay on these are negligence and dereliction of duty of care.

The Health and Safety Executive (HSE) has powers to carry out targeted inspections and investigations, and to take enforcement action. Criteria for triggering investigation here. HSE will consider investigating concerns about work-related stress where:

• There is evidence that a number of staff are currently experiencing work-related stress or stress-related ill health, (i.e. that it is not an individual case), but;

• HSE is not the appropriate body to investigate concerns solely related to individual cases of bullying or harassment, but may consider this if there is evidence of a wider organisational failing, and;

• HSE would expect concerns about work-related stress to have been raised already with the employer, and for the employer to have been given sufficient time to respond accordingly.

Further, you should:

• Insist that local contact tracing is robust for return of students and workers to campus;

• Appoint & train more H&S reps locally, and ensure facilities time is in place for these activities;

• Bring sickness absence policy into H&S consultations - all Covid-19 related illnesses should not be treated under usual sickness absence policies - presenteeism would see members coming to work with symptoms so as not to activate triggers or reduced pay etc;

• Workload planning is a key consideration is workload planning, and it is not possible to be agreed past the end of Semester 1;

• See the TUC Brown Book.

Covid-19 specific impacts and regulations

Use evidence from Public Health England, and the public health bodies of the devolved nations, to guide your response:

• Refer to PHE data on the disproportionate impact of Covid-19 on BAME people;

• The Health and Safety Executive provides extensive guidance on safe working during the Coronavirus outbreak;

• Employers must carry out a Covid-19 risk assessment, and keep written records of assessment, before reopening;

• HSE advises: Employers “should make sure” they consider the risks to vulnerable workers and “put controls in place to reduce that risk”.;

• Equality impact assessments are crucial - push for them if they are not in place.

The United Voices of the World union prepared this advice on what to do if you feel unsafe at work, and on what they consider the ‘right to refuse to work’, specifically stating:

Health and safety - working from home

Employers have the same health and safety responsibilities for home workers as for any other workers. Everyone who can work from home should do so. To help people work from home, employers should:

• Provide the equipment workers need, for example a computer, phone and videoconferencing facilities;

• Keep in regular contact with them, making sure to discuss their well-being;

• For those people who are working at home on a long-term basis, the risks associated with using display screen equipment (DSE) must be controlled;

• This includes employers conducting workplace assessments at home.

Using H&S arguments to resist job cuts

The United Voices of the World union prepared this advice on what to do if you feel unsafe at work, and on what they consider the ‘right to refuse to work’, specifically stating:

Employers state issues with recruitment as a reason for uncertainty and justifications for non-renewal of Fixed-Term Contracts (FTCs). We can resist this by:

• Conducting thorough risk assessments for each FTC that is not being renewed, which can demonstrate that it is unsafe to continue with non-renewal of contracts;

• Using institutional advertising materials and PR against them as this often tells a different and more positive story to the one we are given;

• A useful resource is Sheffield’s Toolkit for FTCs.

The main Acts and Regulations covering workers on fixed-term contracts are:

• The Employment Act 2002;

• The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (SI 2002/2034) which implement the provisions of the Fixed-term Work Directive (1999/70/EC) into UK law;

• The Fixed-term Employees (Prevention of Less Favourable Treatment) (Amendment) Regulations 2008 (SI 2008/2776).
  

*These suggestions are edited summaries of a collaborative working document produced by attendees during the discussion held at the first UCU Solidarity Movement activist meeting.
The unedited document is accessible by clicking here.