Covid 19: employees’ individual and collective rights on health & safety issues on return to work in HE (Scotland) January 2021
Our campaigning position on Covid 19 is:
the Scottish Government has sent out a clear “stay at home” message;
all learning and student support should be done remotely for the time being;
all our sectors need emergency funding now.
The individual rights of employees
In normal times the most effective way to protect the rights of individual union members to work in a healthy and safe environment is through the collective strength of union representation and through direct engagement with employers.
Members do have individual rights in law, and trade unions can lawfully give their members information about these.
The individual right most commonly cited is Section 44 (and the associated Section 100) of the Employment Rights Act 1996 the so-called ‘serious and imminent danger’ provision.
Serious and imminent danger
S.44 ERA provides, as far as is relevant:
44 Health and safety cases.
(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that—
(d) 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, or
(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.
S.100 ERA provides similar protection in relation to dismissal.
These individual rights to protection from detriment and dismissal are not confined to trade union members, but they are confined to employees. Those who do not work under an individual contract of employment do not have these protections.
Sub-section (d) is deliberately framed in wide terms. Where an employee reasonably believes that there are circumstances of danger which are ‘serious and imminent’ they may be protected from detriment or dismissal when they tell the employer that they plan to leave the workplace, actually leave (this presupposes that they do not have permission to do so), or refuse to attend for work.
Without doubt, exposure to Coronavirus can be serious – both for the individual and those they come into contact with. At the time of writing there have been 74,570 deaths in the UK within 28 days of a positive Covid 19 test (ONS data 03.01.21). An individual may reasonably believe the danger in their
own individual circumstances to be imminent, given the rising infection rate in some parts of the country driven by the new variant of the virus which is believed to be more transmissible.
Sub-section (e) is an important provision which may protect individual employees from detriment or dismissal where they refuse to work until the workplace is made safe. This provision is less precise, and ‘appropriate steps’ is not defined. It is possible that where face to face teaching or student support is reasonably believed to be seriously and imminently dangerous, an appropriate step might be to teach online or provide the support remotely, or to wear masks in the classroom/office. Although s.44 provides an individual protection, it goes together with, and should always be approached by unions in the light of, the corresponding legal duty of employers under the Management of Health and Safety at Work Regulations 1999 to put in place procedures to be followed in the event of serious and imminent danger in the workplace. While s.44 is often quoted, the duty on employers is often overlooked. The law is structured so that the weight of responsibility for protecting health and safety at work falls on
employers, and health and safety representatives have a protected role to play in facilitating employers to comply with this responsibility.
Employers’ duties to protect health and safety
UCU’s advice to HE members in Scotland on employers’ responsibilities is as follows:
Prevent the spread and transmission of COVID-19 within their workplaces and fulfil their legal duties under the Health and Safety at Work Act 1974;
Conduct ‘suitable and sufficient’ risk assessments in consultation with trade unions and employees which seek to first prevent or eliminate workplace hazards or control risks at their source;
Identify all potential hazards and risks within the workplace in consultation with trade unions and employees. Risk assessments should consider all those who could be harmed by the hazards identified including employees, students, contractors, visitors, members of the public and so on;
All those identified as being at a greater risk need to also be specifically identified in any risk assessment as required under Reg 3 of The Management of Health and Safety at Work Regs 1999 - including new and temporary workers, young people, migrant workers, new or expectant mothers;
As new evidence emerges in relation to COVID-19, the risk assessments should include those who are at greater potential risk of infection or poorer outcomes from COVID-19 (including long-term health conditions, older age, pregnancy, and people from Black and Minority Ethnic backgrounds).
Appoint competent persons with appropriate levels of knowledge and expertise to undertake risk assessments (union health and safety reps must be consulted about the appointment of competent persons). Once completed the risk assessments should be signed off by the employer and regularly
reviewed to ensure the effectiveness of control measures;
Provide sufficient information, instruction and training to ensure employees and others understand the hazards to which they are exposed and the preventative and protective control measures that should be in place;
Ensure they communicate their risk management systems and procedures to all staff and regularly review the effectiveness of these in consultation with trade unions and employees.
The role of trade union health and safety representatives in facilitating employers to comply with their duties is very important:
Employers are legally required to consult with union health and safety representatives where a union is recognised. Health and safety reps play an important role in preventing illness, injury and death at work. Their role is recognised and protected under the Health and Safety at Work Act 1974, and
they have special legal rights under the Safety Representatives and Safety Committees Regulations 1977 (the ‘Brown Book’) to investigate workplace hazards, represent their colleagues and be consulted on changes to working practices. Employers must consult with union appointed or elected health and
safety representatives in good time on all health and safety matters at work that could have a substantial impact on the health, safety or welfare of employees.
UCU continuously calls for:
All risk assessments in workplaces to be produced in consultation with union representatives and actions to guarantee safe working agreed with unions;
All risk assessments to be published and made available to all employees;
Changes to working conditions and arrangements affecting the workforce to be preceded by an Equality Impact Assessment (EIA). This is particularly important in the current crisis in which the disproportionate direct and indirect impact of Covid-19 are well known (e.g. on Black and Minority Ethnic staff; on medically vulnerable staff; on staff, mainly women, with caring responsibilities; and so on). EIAs should be published to all employees;
Assessment of data about the local incidence of COVID-19 should be factored into workplace risk assessments;
Risk assessments must be updated in line with new information about risks, eg the transmissibility of the new variant of coronavirus.
Union advice to members
Members are encouraged to raise any health and safety concerns with the union so that they can be taken up with the employer on their behalf. Members should be aware that despite the protections under s.44 and s.100, an effective response to any detriment or dismissal suffered would be dependent on winning a claim in the Employment Tribunal.
If members are placed in a position in which they are being pressurised by their employer to respond to an instruction to return to work, a suitable holding reply while seeking union advice would be:
“I am very concerned about the suggestion that I return to on-site work activities without knowing all suitable and sufficient risk management controls are in place making it safe to return. In particular I note that existing risk assessments will need to be reviewed and updated in the light of the increased
transmissibility of the new variant of coronavirus B.1.1.7. My union, UCU, will be advising me of the outcome of collective consultations over any proposed risk management strategy the University of Aberdeen may have. I therefore request that this consultation takes place with UCU prior to any consultation with me individually.”
Where members are worried about particular circumstances which heighten their individual risk, they can write to their employer/manager using the appropriate template provided by UCU here: https://www.ucu.org.uk/covid19letters
UCU notes the actions taken by sister unions in the education sector in England and applauds their stance given the requirements on their members to return to work on 4 January 2021, and their members’ reasonable belief that the risks in schools have increased with the advent of the new variant of Coronavirus.
By law, trade unions must not induce their members to breach their contracts of employment (including by refusing to attend for work or leaving the workplace) – unless the unions have the protections accrued by having gone through the necessary legal steps to take lawful industrial action by holding a ballot which complies with the statutory requirements of the Trade Union and Labour
Relations (Consolidation) Act 1992. Disputes over health and safety matters can form the basis for lawful industrial action, although, of course, the timescale involved in balloting and other procedural requirements in preparation for industrial action is often too long to respond to any very urgent health and safety issue.
The legal framework of individual versus collective rights prevents unions from proactively advising or encouraging their members to avail themselves of the protection of s.44 if they remove themselves from ‘serious and imminent danger’ at their workplace. The question is whether the union’s communications with its members cross the line from advice and information to unlawful industrial
Unions need to take care to distinguish between merely providing members with information about s.44 and s.100, which we are clear is permissible, and being seen to ask or encourage members to remove themselves from danger where they have a ‘reasonable belief’ in serious and imminent danger.
There is a tension between the individualised rights under ss. 44 and 100 and the provisions in TULRCA which legitimise industrial action. We would argue that the provision of advice by a trade union as to its members’ legal rights in these circumstances does not amount to an inducement. A union does however need to make it absolutely clear in any communication that the union is merely providing information as to members’ individual rights under ss. 44 and 100.
That is something that any trade union must be permitted to do, in order to protect its members’ health and safety.
To this extent, the utility of s.44 to trade unions is limited, and from the trade union perspective does carry some serious potential exposure to legal retaliation from employers. Employees may invoke their individual rights at any time, whether they are union members or not, and whether their union has advised them to do so or not. If they are a union member and they are disciplined by their employer for doing this, they will have the same right to representation and support as they always do.
If a union proactively advises its members to invoke their individual rights, as some education unions have done in the case of school re-openings, it exposes itself to a risk of legal action from each of the employers affected by its advice. Any union’s decision to do this will only be taken with great care and extensive discussion, and as an absolute last resort. It will depend on a range of political, scientific and other factors: for instance, whether line managers and employers are likely to discipline members who invoke those rights; whether employers are likely to take legal action against the union; the urgency of the situation; the availability of other options for protecting members; current scientific advice about the relevant hazards; different situations in different workplaces and sectors where the union has members; and the scale of the benefits to health and safety of members and the general public that can be won by forcing any change.
UCU’s position is constantly being kept under review and we will notify members as soon as possible if there is any change.
Covid-19 Pandemic 2020
UCU has provided a wide range of information relating to the pandemic which can be accessed here
Local voluntary subscription
Expenditure was higher than usual last year, in the main because of the cost of hiring Dunbar Hall as our strike base. In order to return the bank account to the level required to ensure the branch is sufficiently solvent to meet all financial obligations, members proposed introducing a voluntary local subscription. If any member wishes to do so, they may set up an instruction with their bank to deposit money directly into the branch account – either a one payment or a regular small payment. Members will retain control over the payments and may vary/cancel at any time. This is an entirely voluntary scheme.
Bank: UNITY BANK
Account no: 50510870
Sort code: 60-83-01
COVID-19 Contact Information from local MP
NO SYMPTOMS BUT LOOKING FOR GENERAL ADVICE (SCOTTISH GOVERNMENT)
- Scottish Government helpline: 0800 028 2816.
Open daily from 8am – 10pm
- Also Google “NHS Inform coronavirus”
If you have symptoms
- Call 111 if you need advice. You can call this 24 hours a day. Do not call your GP practice
- Use NHS inform if you need a sick note – do not call 111
- TAX CONCERNS (UK GOVERNMENT)
- HMRC helpline: 0800 0159 559
Opening hours are Monday to Friday 8am to 8pm, and Saturday 8am to 4pm.
- SCOTTISH BUSINESS OWNERS – ADVICE (SCOTTISH GOVERNMENT)
Scottish Enterprise helpline: 0300 303 0660.
Opening hours are Monday to Friday from 8:30am to 5:30pm
IMMIGRATION ADVICE (UK GOVERNMENT)
Home Office helpline: 0800 678 1767
Opening hours are Monday to Friday, 9am to 5pm
Age Scotland: 0800 12 44 222
Opening hours are Monday to Friday 9am - 5pm
Shelter Scotland:0808 800 4444
Opening hours are Monday-Friday 8am-8pm; weekends 8am-5pm
GENERAL SUPPORT FOR PARENTS AND CARERS
- Parentline Scotland: 0800 028 2233
Opening hours are Monday to Friday from 9am to 9pm; weekends 9am to noon.
SUPPORT FOR SINGLE PARENTS
- Lone Parent Helpline: 0808 801 0323
Opening hours are Monday to Friday 9.30am to 4pm
SUPPORT FOR PARENTS OF DISABLED CHILDREN
- Contact: 0808 808 3555
Opening hours are Monday to Friday, 9.30am-5pm
HOMESCHOOLING / EDUCATIONAL SUPPORT
- Literacy resources for ages birth to 12: https://literacytrust.org.uk/family-zone/
Online advice on managing the impact of Covid-19 on their child’s learning and family life: parentclub.scot
PEOPLE WITH LOW MOOD, DEPRESSION OR ANXIETY:
- Breathing Space Scotland: 0800 83 85 87
Opening hours are Monday - Thursday 6pm to 2am; Friday 6pm - Monday 6am
- SSPCA: 03000 999 999
Opening hours are 7am-10pm every day
- From Thursday 19th March, people receiving benefits do not have to attend job centre appointments for three months.
- Fit notes will not be required for people who need to claim ESA Universal Credit because of coronavirus
- Jobcentres remain open and will continue to support people who are not able to use phones and online, including homeless people.
ESA / UC
- New ESA claimants who are diagnosed with or are staying at home on Government advice due to coronavirus will have money for the first 7 days of your claim included in their first payment.
- People diagnosed with or staying at home on Government advice due to coronavirus will be able to apply for Universal Credit, and can receive up to a month’s advance upfront without physically attending a jobcentre
- People diagnosed with or staying at home on Government advice due to coronavirus, will not be sanctioned, but must inform the DWP in good time.
- If you need to provide evidence to your employer that you need to stay at home due to having symptoms of coronavirus an Isolation Note can be obtained from NHS 111 online. If you live with someone that has symptoms, an Isolation Note can be obtained from the NHS website
- Statutory Sick Pay will be payable if you are staying at home on Government advice, not just if you are infected by coronavirus. This will apply from 13 March 2020.
- People diagnosed with or staying at home on Government advice due to coronavirus, will have the work search and work availability requirements removed to account for a period of sickness
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