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#1 Posted : 26 October 2003 20:57:00(UTC)
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Posted By Jim O'Dwyer
Given the significance of S44 Employment Protection Act 1996, does anyone know:

1. Why so few people are aware of it?

2. Whether it is mentioned in any IOSH Training course?
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#2 Posted : 27 October 2003 09:38:00(UTC)
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Posted By Paul Leadbetter
Jim

I see that you are not having much luck with this, so far. It could be because colleagues cannot find the section to which you refer. The correct title is the Employment Rights Act.

Paul
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#3 Posted : 27 October 2003 15:06:00(UTC)
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Posted By Jim O'Dwyer
Thanks for your help Paul!

Yes, I did mean S44 Employment Rights Act 1996 - and specifically, Chapter 18, Part V, PROTECTION FROM SUFFERING DETRIMENT IN EMPLOYMENT.

It is viewable (free) on the hmso web site:
http://www.legislation.h...cts/acts1996/1996018.htm

Best wishes,

Jim O'Dwyer
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#4 Posted : 27 October 2003 15:16:00(UTC)
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Posted By Neil Pearson
I don't think it's been hushed up! I remember covering this in my Diploma studies. It's important, for sure.
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#5 Posted : 27 October 2003 16:46:00(UTC)
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Posted By Jim O'Dwyer
Thanks for your input on this Neil.

Are you confirming that you were informed about S44 in an IOSH training Course?

Also, do you - or anyone else - know of any company that draws its employees' attention to S44. and explains its significance.

Jim
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#6 Posted : 27 October 2003 17:22:00(UTC)
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Posted By Neil Pearson
This certainly wasn't on the syllabus last time I delivered IOSH Managing Safely. I was referring to the NEBOSH Diploma, which is not run by IOSH. I guess companies would be unlikely to draw attention to this, but I sometimes mention it.

In particular if I mention in an induction or training course about the employee's duty to report hazards or shortcomings in arrangements. People are often wary of this, and I often mention this piece of law to them.
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#7 Posted : 27 October 2003 18:21:00(UTC)
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Posted By Jim O'Dwyer
Neil,

Thanks for confirming that there was no mention of S44 in the IOSH "Managing Safely" training you delivered.

Can I ask whether you feel that, if the terms of S44 were common knowledge amongst employees and employers, workplace safety standards would be much higher in the UK than they are at present?

My own feeling is that if employers knew that their employees knew about S44 they would know that, unless they provided a suitably safe working environment, their staff could withdraw their labour and remain off work at home - on full pay - until the shortcomings are remedied.

Just the threat of this happening would be sufficient to encourage most if not all employers to invest more appropriately.

Do you agree?

Best wishes,

Jim
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#8 Posted : 28 October 2003 14:13:00(UTC)
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Posted By Shane Johnston
O.K. so the employee refuses to work because he thought the process represented a serious risk. The employer explains to the employee that the risk has been reduced to an acceptable level. Employee still thinks it is too dangerous and still refuses to work. Employer dismisses the employee.

Unfair dismissal case bought by the employee. Employer found to have reduced risks to an acceptable level. Employee now an ex-employee. The Employment Right Act would have made no difference in this case.

The only time this Act would make a difference is if the employer just doesn't care about exposing an employee to an unacceptable risk (i.e. he accepts that their is an high risk, but does nothing about it). But if this is the case, do you think the employer would continue paying the employee full pay ? I doubt it, sacked employee in most cases. In which case the employee would still make an unfair dismissal claim and would win. O.K. so he gets his job back/compensation .... but he could have done this anyway without the Act.

To you and me (appointed safety professionals) this Act gives greater protection, but I can't see what differenec S44 makes to your average employee. If an employer flouts H&S legislation, isn't he just as likely to ignore this Act (much of which is covered by Reg 8.2.b of the MHSWR anyway)

Shane.
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#9 Posted : 31 October 2003 09:45:00(UTC)
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Posted By Jim O'Dwyer
Shane, thanks for your input.

You said in your posting: "I can't see what difference S44 makes to your average employee."

Well, here's why I think S44 Employment Rights Act 1996 could be considered the 'corner stone' of the Health and Safety Legislation :-

S44. leaves employees with no excuse whatsoever for tolerating unsafe working conditions.

S44. empowers employees to (in everyone's interests) contest the adequacy / suitability of safety arrangements without fear of suffering detriment (e.g. loss of wages, getting sacked or transferred) and so acts as a real deterrent against an employer devoting inadequate resources to the protection of safety in their workplace.

S44. means employees don't have to wait until they (or someone else) suffer injury before taking action to get suitably safe working conditions.

S.44 entitles employees to claim for 'Constructive Dismissal' and compensation in the event that an employer fails to maintain safe working conditions. (Employees can claim this right at any time.)

S44. provides employees with the 'right' to refuse to return to a workplace that is unsafe. Employees are entitled to remain away from the workplace (e.g. stay at home) if - in their opinion - the circumstances prevailing represent a real risk of serious and imminent danger which they could not be expected to avert.

WHO DECIDES?

In the event of any continuing disagreement about the adequacy of the safety arrangements, either party can refer the matter for adjudication by Employment Tribunal.

PROTECTS EMPLOYERS / WARNS EMPLOYEES

S44. protects employers against liability for 'reckless behaviour' on the part of employees.

S44. prescribes the circumstances in which an employee should take "appropriate action" to withdraw / remove themselves from danger and S44. (3) specifically warns employees that if they recklessly undertake work that is unsafe and get injured they may not be able to make a claim against their employer for liability.

S44. WAS DESIGNED TO PROTECT THE PUBLIC

The right to refrain from unsafe work is accompanied by an unspecified (but there nevertheless!) expectation upon employees to exercise the right in appropriate circumstances (i.e. in order to publicly highlight safety shortcomings.)

INCENTIVE TO EMPLOYEES

The incentive to employees to exercise their rights under S44. is that if they refuse to do unsafe work they will still get paid - but, if they act recklessly and get injured they may forfeit entitlement to compensation.

HOW WILL AN EMPLOYEE'S ACTIONS BE JUDGED?

Employees who find themselves needing to take 'appropriate action' to withdraw from dangerous work circumstances are fully protected against "suffering detriment" as long as their action was taken "in the reasonable belief" that the danger was "serious and imminent" and that they were unable to prevent it happening.

The law says, the extent of the measures taken by employees to protect themselves will be judged:

" .... by reference to all the circumstances including, in particular, his (the employee) knowledge and the facilities and advice available to him at the time." (S.44.2 Employment Rights Act 1996.)

THE EFFECT ON EMPLOYERS

S44. means employers have to maintain standards of safety that are acceptable to employees - or else risk having their workforce off work on full pay!

WHY ISN'T THE EXISTENCE OF S44 COMMON KNOWLEDGE?

I think the reason why S44 is not common knowledge is (clearly) because it gives employees the upper hand on decisions about workplace safety.

What do you - and others - think?

Best Wishes,

Jim O'Dwyer


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#10 Posted : 31 October 2003 20:24:00(UTC)
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Posted By Neil Pearson
Although I've not come across examples where employers make employees aware of this provision, many employers operate a "stop work" policy. By this I mean that many employers actively encourage their employees not only to report danger but to stop work if necessary.

I think you're right if you suggest that this kind of policy deserves to be promoted more widely, but I do think you are in danger of concentrating too much on this to the exclusion of other provisions.
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#11 Posted : 01 November 2003 18:39:00(UTC)
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Posted By Jim O'Dwyer
Neil, Thanks for your comments on this.

Neglecting to point out the significant rights S44 gives to employees is more than 'a lack of transparency, it is a deception (that facilitates exploitation).

Failing to explain the 'duty expectations' of S44 to employees also prevents them from playing the vital role they were intended to play in ensuring employers maintain suitable standards of safety - and this puts public safety at risk. (e.g. Railway accidents)

I think that for these reasons, S44 should be the 'baseline' for every health and safety policy. Don't you?

Jim O'Dwyer






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#12 Posted : 05 November 2003 10:29:00(UTC)
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Posted By Fiona Cowan
S44 brings duties as well as rights and I am certainly promoting the Act in relation to reporting of incidents/near misses in managing conflict and aggression. There are close links to the responsibilities and duty of care to colleagues etc in the underpinning acts.

Induction material and our general H&S statement both include reference to S44.
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#13 Posted : 05 November 2003 12:13:00(UTC)
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Posted By Jack
Jim you seem to be implying some sort of conspiracy to keep quiet about this, and might be using the responses in evidence ('- - thank you for confirming it was not covered on the IOSH course you delivered')!!!

I qualified long before 1996 but I can confirm that my course covered the issue. Then it was part of the Employment Protection (Consolidation) Act 1978 - I seem to recall (no doubt someone will correct me if I got it wrong).

I'm not sure I'd agree it's the cornerstone of health and safety though!!
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#14 Posted : 05 November 2003 18:54:00(UTC)
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Posted By Jim O'Dwyer
Thanks for your input Fiona.

I'm pleased to hear that your organisation draws employees' attention to the existence of S44.

I'm also grateful to you for identifying and highlighting yet another way that S44 can be used to improve safety at work.

Are you able to confirm that, after learning about the existence of S44, your organisation's employees:

1. Haven't stayed off work in their droves claiming their work is unsafe (as might be feared by many employers)?

2. Have a clear understanding of the expectations of them, know the ceiling of their responsibility and feel much more 'in control' of the risks they face?

AND, if this is the case, are you able to say whether it's also because management, being aware of the terms of S44, respond in a more positive way to safety concerns than they might otherwise have done?

Best Wishes

Jim O'Dwyer

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#15 Posted : 05 November 2003 19:55:00(UTC)
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Posted By Jim O'Dwyer
Jack,

I'm certain that there is a 'high level' conspiracy to conceal the existence of S44.

But, I'm not gathering evidence!

I have no need to, because the weight of evidence is already overwhelming.

The irrefutable proof is the fact that hundreds of thousands of people go to work every day knowing full well that the safety arrangements in place to protect them are hopelessly inadequate! (e.g. Social Services workers, NHS Staff, Security Personnel, Airline Cabin Crews, Public Transport Workers, Teachers, Carers working with the elderly etc. etc.

Many of them do so out feeling some kind of (normally indoctrinated) misguided loyalty to the clients they serve but most do so because they simply don't know that they can challenge the adequacy of the protective arrangements - let alone that that is what the law expects and supports them to do!

How many of them would go to work tomorrow if they knew their rights - and the 'public interest' intentions - of S44?


WHY DO SO FEW PEOPLE KNOW ABOUT S44?

Look at how significant the rights granted by S44 are, then, ask yourself how come so little is known by so few about it - and how that could have come about.

Ask yourself how 'explanations' about Health and Safety legislation come into the public domain and then consider the number of agencies that then 'forward' the information on to the masses.

Unless it was deliberate, is it feasible that out of so many official and household name agencies NONE of them highlight the rights and responsibilities of employees under S44?

There come a point when a series of co-incidences becomes so long as to become improbable by chance alone!

QED!


I'd like to hear what you and others think.

Best wishes

Jim O'Dwyer


P.S. I'm pleased you've been able to help me reason how I came to refer to S44 Employment Rights Act as the Employment Protection Act in the discussion subject title!

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#16 Posted : 05 November 2003 22:10:00(UTC)
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Posted By Jason Gould
From a laymans point of view I have never come accross this before now. Worked for many places and had many inductions. Done upto dip 1 and still dont recall this mentioned. I hope its explained on the dip 2.

Very Very Interesting
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#17 Posted : 06 November 2003 07:56:00(UTC)
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Posted By Bob Pedley
I must admit for those of us who work with large responsible organisations this legislation will have passed us by as our procedures tend to take care of the employee rights through their contract of employment.

Excellent thread, would suggest a summary of the key point be integrated into the Managing Safely course. I will include more detail on this item in future courses I run.
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#18 Posted : 06 November 2003 09:23:00(UTC)
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Posted By Sean Fraser
I have been following this thread for a while to see how it panned out, and I believe that there was a linked thread raised recently on the changes to Management and Fire regs that effectively allow for employees and employers to take legal action against the other for breach of statutory duty (as far as I have read it to mean):

http://www.iosh.co.uk/in...rum=1&thread=6066&page=1

To be honest, until this thread started I hadn't really known about this particular piece of legislation, and it is useful that it has been brought to our general attention for discussion. But the reason I didn't know about it is not because of a conspiracy of silence - it is because it must have been of limited interest when it was legislated and few if any have found any particular need to publicise it. Am I right in thinking that this Act is the so-called "whistleblowers charter"? If so, it was covered in the press for a while but interest soon drained away. Why? As an Act of parliament it is national law and therefore open for public scrutiny - it cannot be hushed up or hidden away. A conspiracy by big business to supress it? Somehow I doubt it. Obviously it isn't seen as worthy of close attention by our free press. We don't operate in vacuums, reliant totally on our employers to tell us what employment rights we have - we can find out for ourselves, when we need to know. And the reason most people aren't following up on this is because they don't care - until they are directly affected. And you can be sure that if they seek legal advice (individually or through their Union) then their solicitor will be quick to advise them that their rights are protected.

Before I get inundated with claims that we are all caring and responsible citizens, stop and think - how many peole have you seen who are blithely unconcerned about what can only be called dodgy practices, often out of their work environment? For example, people who will use damaged ladders to reach heights, no fall arrest equipment, no head / face / hand protection, while working on their house? Can you really claim that these people are concerned for their safety? Why are we so dead set on placing all of the responsibility on the shoulders of the employer?? What we really need to do is continue to increase the general level of hazard perception so that people apply the principles of risk assessment to EVERYTHING they do - NOT just at work. And here I see the crux of why this Act is going to have little or no real impact, certainly not in the way that Jim hopes it would. Upshot - people accept poor working conditions - 1] because of the general working culture in the organisation (however big or small that it may be), - 2] because of general ignorance and disinterest, and finally - 3] because of complacency.

The real reason it isn't being shouted from the roof tops is that it is having little actual effect and is unlikely to do so. Legislative protection is all well and good, but it doesn't suddenly overturn years or decades of a bad corporate culture in itself. Even if this WERE being heavily promoted, there would be few who would be willing to shove their heads above the parapet, regardless of whether they are wearing their tin lid or not. There is more to consider here than just a clause in a legal Act.

My point is that it is not legislation that will make people safe - it is the people themselves. According to market theory and Keynsian economics, in a strong job market the employees can pick and chose where they want to work and they will reject employers whose terms and conditions (stated AND actual) are less than the average or that of the benchmark leaders - thereby forcing poor employers to improve in order to remain competitive (or just stay in business!). You can argue, according to your own political persuasion, on whether we are in such an economic climate right now. However, it is only by demonstrating that a safe and healthy operating culture makes good business sense that will persuade and encourage employers to set high standards and to continually improve them, not the threat of legislative punishment. Fear of the bogeyman has been rumbled, and it has becoem a case of crying wolf - it just doesn't cut it any more.

I see nothing in wrong in pointing out that employee rights are protected - but I feel that if this becomes a stick with which to threaten employers then we have all missed the point and failed in our duty as safety professionals to educate and advise. Lets work together to improve our respective safety cultures through effective and efficient management systems, as employers AND employees. In the end, we all benefit.
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#19 Posted : 06 November 2003 09:27:00(UTC)
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Posted By Fiona Cowan
Jim,

As you point out in your reply to Jack, our carers, teachers etc keep going to work and live with what are seen as acceptable risks.

In my experience, many of these people are almost unaware of the hazards faced in their workplace and conditions let alone how to challenge the risk prevention managment systems.

Faced with trying to educate people to think about why the law is there in relation to their situation and getting the Very Senior management committment can make the SHE and HR teams feel a bit like a very thin spreading of butter in a doorstep.

Changing perceptions and attitudes is not as you are well aware an overnight business but, we seem to be starting to turn the corner of seeing potentially unacceptable risks as "part of the job". Hopefully the NHS zero-tolerance will also start to have a positive impact on other care providers for example.

It would appear to be the case that staff are becoming more confident of highlighting concerns following publicity of positive incidences and remedial management and reviews.

My own feeling is that overcoming entrenched positions of supervisors "who have always done it that way" and undermining training is another management issue for awareness raising and changing the perceptions of staff as well as managment.

Regards

Fiona
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#20 Posted : 06 November 2003 09:34:00(UTC)
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Posted By Jim O'Dwyer
Thanks Jason and Bob for your input on this discussion.

I think that, given the significance of the rights (and responsibilities) that it brings, everyone should know about S44 from the first day they start work!

The problem is that none of the 'agencies' (including Unions!!) that disseminate information on health and safety seem similarly inclined!

However, my feeling is that there appears to be a consensus developing that supports the integration of an explanation about S44 in IOSH Courses.

Does anyone know how this might be effected?

Best wishes,

Jim O'Dwyer


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#21 Posted : 06 November 2003 10:12:00(UTC)
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Posted By Jim O'Dwyer
Fiona, thanks for your input.

It has been my experience that becoming aware of the terms of S44 is an "attitude reforming" experience for Senior Management.

When they discover 'the business case' for ensuring standards of safety at work meet with employees' expectations - they quickly develop committment (and find the necessary resources)to achieve the goal!

You are right when you say that more and more, employees are 'standing up' against employers who fail to maintain suitable standards of safety at work.

The pity is that in many cases, they will not be properly 'protected against recriminatory action on the part of their employer' - until, that is, their case comes before an Employment Tribunal or a Court - and this is because their Management are not aware of the rights (and responsibilities) employee's have under S44.

Finding out about S44 that late in the proceedings can be a humiliating experience for managers.

I've got to go to work right now - but I'll be back online later this evening for more!

Thanks to everyone for contributing to make this an IOSH Discussion Board 'hot topic'.

Best wishes,

Jim O'Dwyer
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#22 Posted : 06 November 2003 10:21:00(UTC)
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Posted By Jim O'Dwyer
Further to my last posting:

Fiona, I meant to add that I've found the penalty aspect of the 'loss of rights to compensation' for any harm sustained after continuing to perform recognisably unsafe work is the bit in S44. that tends to focus employees on working safely!

Best wishes,

Jim O'Dwyer
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#23 Posted : 06 November 2003 10:23:00(UTC)
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Posted By Jay Joshi
Employment legislation can have and in this case has an interface with health and safety issues, but it is not under the heading of health and safety legislation.

I am sure that should section 44 have been the "cornerstone" of safety legislation, the trade unions, especially the TUC would not only have referred to it as such, but it would be very prominent and conspicuous in their information etc. Yes, it plays an important role insofar as protecting rights of employees not to be discriminated for genuine health and safety concerns that are NOT addressed by employers despite bringing it to their attention--through tribunals. The tribunals will hear the evidence of how the employer has handled the matter in terms of procedures such as a grievience, albeit a safety matter and whether an employees was unfairly discriminated against such as being disciplined or dismissed.

This is primarily a Human resources /personnel matter for ensuring that employees are not discriminated against. Yes for health and safety matters.

Interestingly, this was covered in a general management & supervison workshop I attended last year under the heading of employment legislation.
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#24 Posted : 06 November 2003 10:36:00(UTC)
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Posted By Jason Gould
Jim

I fully agree with the main points of this thread.

Being a little-bit blunt and realistic though, I cant see companies welcoming course providers telling their employees these points.

Maybe its a matter of timing, i.e. establish commitment to HSG 65 and getting the majority of buisnes to create, implement and monitor safety systems first.

I dont know for sure,

Isnt their a reg in the management regs that covers this?
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#25 Posted : 06 November 2003 13:43:00(UTC)
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Posted By Dave Wilson
Jim the phrase "Totally inadequate and presents a serious and imminent danger" I was always lead to belive that sweeping generalisations are at least niave and not very helpful, I for one would like to know where this is happening to 'cabin Attendants' as if there is something we have missed then please enlighten me, cos if what you say is true then I suspect the HSE will be issuing all airlines with prohibition notices for these 'breaches' and my work will be even more onerous, thats if I still have a job!
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#26 Posted : 06 November 2003 21:16:00(UTC)
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Posted By Jim O'Dwyer
Hi Jay,

Thanks for your comments on this.

You're wrong to assume that if S44 was so important as to merit the description 'the cornerstone of the health and safety legislation, the trade unions and especially the TUC would ensure a high level of awareness!

(I have more evidence on this if you'd like to e-mail me directly.)

Let's put it this way - I have no doubt that because it underwrites every employee's right to a safe way of working, S44 merits the 'cornerstone' description.

You have to make your own mind up about whether it is or not and then ask yourself why none of them promote full awareness of it (I will say that some agencies and unions of them have started to mentioned it - but none of them have told members that they may forefeit compensation if they have continued to work on in recognisably unsafe circumstances.)

Best wishes,

Jim O'Dwyer

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#27 Posted : 06 November 2003 21:30:00(UTC)
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Posted By Jim O'Dwyer
Hi Jason and thanks for your input.

You are right when you say that many companies would not like their employees informed about S44.

Far sighted organisations however, will recognise how important it is to be open and transparent with staff - its the best way to secure and sustain their trust, loyalty and commitment.

I like your point about whether or not there is a regulation that requires employers to disclose the existence (and interpretations) of legislation that is relevant to employees.

I have to say that although I can easily see a moral obligation, I'm not sure there is anything that actually requires employers to do so - hence they only get told what the employer wants them to know.

The law expects employees to know their legal position.

It's back to the old saying "Ignorance may sometimes be bliss - but it is never an excuse in law".

Best wishes,

Jim O'Dwyer
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#28 Posted : 07 November 2003 10:32:00(UTC)
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Posted By Jim O'Dwyer
Hi Bob,

Sorry for the delay in coming back to you.

I think that the question of Passenger Airliner security merits a discussion forum of its own, don't you?

However, in explanation, I included 'Airline Cabin Crew' in the group of employees who I feel go to work everyday knowing that the arrangements in place to protect them are hopelessly inadequate for good reason. (I refer to the risk of being attacked at work.)

If you feel differently, then let us put it to the test - let me carry out a 'Cabin Crew attitude' survey (where the anonimity of staff who contribute is totally protected).

I am happy to provide my time free and would be happy to work alongside other interested parties who could assist to make it a wholly impartial exercise.

What do you say?

Best wishes,

Jim O'Dwyer
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#29 Posted : 07 November 2003 12:10:00(UTC)
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Posted By Ashley Williams
Well this has been an interesting discussion. I have to say though that the unions have been aware of this since it came out, although they don’t ever have appeared to use it for some reason? Perhaps there is a conspiracy? From memory I seem to remember that the section came in from one of the euro directives to protect mainly union safety representatives.

Ash
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#30 Posted : 07 November 2003 20:57:00(UTC)
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Posted By Jim O'Dwyer
Hi Ash!

Thanks for your contribution to this discussion.

A conspiracy?

There was one. But, what remains now would be more akin to a "resistance".

The significant thing to be aware of is that S44 exists as an Act of Parliament and there is no way now of controlling the rate at which people learn about it, their rights and how to get them; and there is also no control over how many employees will exercise their right to a safe way of working or when they will choose to do so.

There is also a possibility that a sudden rush by employees to take up entitlements could result in serious and widespread disruption.

For example, the lack of training/ resources provided to security officers to handle violent people means that practically every single one of them could justifiably remain OFF WORK, ON FULL PAY for as long as it takes their employer to remedy the situation or until an Employment Tribunal can be convened and a decision reached about the adequacy/ inadequacy of the safety measures (min 3 months).

Most nurses could do the same. So too, could the Teachers, Social Workers, Air Line Cabin Crews, Bus Drivers, Railway Service workers, Benefits Agency workers etc.

And, who could blame them?

Best wishes,

Jim O'Dwyer
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#31 Posted : 07 November 2003 21:51:00(UTC)
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Posted By Arran Linton - Smith
I quite understand and respect the enthusiasm which Section 44 of the Employment Protection Act 1996 is being discussed on this forum, however the danger with this thread is that there is possibly too much attention being placed on the written detail of text within Section 44 rather than identifying its real purpose and objective.

As I understand the spirit of this legislation is to protect the employment of employees such as officially recognised safety reps and also employees who stop their work because of a situation of “serious and imminent” danger. I am absolutely sure that any reasonable employee would not expect their employees to continue to work where there were situations of serious and imminent danger anyway.

Surely employees have far more effective power as internal stakeholders through the requirements of Regulation 14 of the Management of Health and Safety at Work Regulations 1999. Effective modern safety management arrangements must surely be about the empowering all stakeholders anyway and if you look at pages 18, 19 & 20 of Systems in Focus this covers the issue of stakeholder involvement partially the workforce and the workers representatives.

Perhaps in suggesting that Section 44 of the Employment Protection Act 1996 could be considered the 'corner stone' of the Health and Safety Legislation is completely ignoring the fundamental role that the Health and Safety at Work etc Act 1974 and the Management of Health and Safety at Work Regulations 1999 have.

I would suggest that NEBOSH Certificate students do check their syllabus as I suspect that it is most unlikely that they will be examined on Section 44 of the Employment Protection Act 1996 and by raising it that they are not likely to gain many marks at this stage (if any at all).

Health and safety law is a very broad subject to the extent that you can do a Masters Degree in this subject alone. The danger in concentrating only on one aspect of the law is that you can completely miss the overall picture. From a professional point of view and in order to continue with this discussion we really need hard evidence in the form of case law to identify the real purpose of this legislation. Surely after seven years there is now case law which can be identified in respect of this particular legislation?
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#32 Posted : 08 November 2003 13:18:00(UTC)
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Posted By Neil Pearson
There is case law, according to my Tolley's.

Kerr v Nathan's Wastesavers Ltd 1995
Harvest Press Ltd v McCaffrey 1999
Mosiak v City Restaurants (UK) Ltd 1999
Barton v Wandsworth Council 1995

Sorry I can't type out the whole lot here.

But it seems to reinforce the idea that the employee is well-protected and would have to be quite unreasonable (negligent) for the employer to get away with disciplining or sacking the employee.
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#33 Posted : 09 November 2003 08:25:00(UTC)
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Posted By Jim O'Dwyer
Hi Arran, thanks for your input.

You suggest that what is needed now is hard evidence in the form of case law to identify the 'real purpose' of the S44 legislation.

Whilst that would be helpful in putting things into context, the purpose of S44 is perfectly clear. (Like all new legislation, it seeks to clarify aspects already covered by existing legislation.)

S44. was intended to clarify expectations of 'duty holders' in particular circumstances - and it does that in carefully considered, uncomplicated and unmisinterpretable terms.

What may not be quite so clear is the implications of S44!

And, establishing exactly what these are should become our next objective.

Once we've done that, we will understand why so much has been done to prevent S44 becoming common knowledge and, at that point, I think we will be forced to conclude that what is needed is a complete review of the way health and safety responsibilities are explained to employers and employees.

Allowing the current situation to continue is not in anyone's interests.

The seemingly inexorable growth of 'the compensation culture' means that employers MUST be informed of their position in clear, easily comprehensible terms so that they can be properly prepared! And, employees need to have their responsibilities as well as their rights clearly explained to them so that they can fulfil the role the legislators intended them to play in ensuring employers achieve and maintain suitable standards of safety.

It is time for transparency and I hope that IOSH members will take the lead role in this initiative.

Best wishes,

Jim O'Dwyer
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#34 Posted : 09 November 2003 17:24:00(UTC)
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Posted By Arran Linton - Smith
Jim,
I read you’re your reply to my posting with great interest. I feel that you have a valid point in rising Section 44 of the Employment Protection Act 1996 and I understand you great interest in this particular legislation.

In terms of transparency I feel that you are already trying to push at a wide open door. If you look at pages 18, 19 & 20 of the IOSH publication ‘systems in focus’, this discusses the issue of stakeholder involvement in some detail.

I think that you will find that most responsible employers do explain to employees their Health and Safety responsibilities as well as their Health and Safety rights. If you look at page 5 of the Sunday Times today you will see a clear example of employees exercising their H&S rights with what you have been discussing. I would also go further and say that there are lots of examples of employers with written policies and procedures where the employees can immediately stop the work if they feel that it is unsafe to continue.

With thanks to Neil Pearson’s help, I have looked at the Hazards Magazine website for similar case law. It is clear from their web-site that employees are well protected (in law) in relation to H&S matters, many cases identified on this web-site were even heard before Section 44 of the Employment Protection Act 1996 was published.

I do not believe that there is a conspiracy to hide Section 44 of the Employment Protection Act 1996, I just think that the reason that it is not as well known as the Health and Safety at Work Act 1974 or the Management of Health and Safety at Work Regulations 1999, is that it is reactive rather than pro-active and arguably it should only be used like PPE as a last line of defence.

If you are suggesting that Section 44 of the Employment Protection Act should be considered the Cornerstone of United Kingdom, surely this goes completely against the Robens ideals within the Robens Report published in 1972?
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#35 Posted : 09 November 2003 20:31:00(UTC)
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Posted By Jim O'Dwyer
Hi Arron,

In an earlier posting you wrote: "Surely employees have far more effective power as internal stakeholders through the requirements of Regulation 14 of the Management of Health and Safety at Work Regulations 1999."

I'm sorry, but I can't see that the duties imposed on employees by this section represent any kind of empowerment that would protect an employee against an uncaring, inconsiderate employer. Can you enlighten me?

You say in your most recent: "I think that you will find that most responsible employers do explain to employees their Health and Safety responsibilities as well as their Health and Safety rights."

Perhaps you are right that most 'responsible' employers do - but the problem is that there are a lot of employers who are prepared to act irresponsibly and consciously take risks with other people's health and safety!

For example: Did you know that the CBI recently warned that as many as 2 in 5 companies are now operating (illegally) without adquate public liability insurance?

This particular form of 'conscious risk taking' is largely because PL premiums have shot up in some cases by a massive 5000% over the past 18 months. The increases have followed the stock market collapse and the consequential failure of insurance company investments - their real life blood! They have also been hit very hard indeed by 'negligence' based insurance claims. To survive, the insurance houses have had to increase premiums.

The government's position is that they will not intervene in the situation unless and until there has been a complete 'market breakdown'. One reason why the government won't intervene until then is because they get commission on the premiums paid - which in the next twelve months is going to mean an extra (and unplanned for) £300m coming into the Treasury coffers!

Shocking eh?

(So, always VERIFY the other guy has got valid, current PL cover.)

Ah well - back to S44!

I am unable to comment on the content of pages 18, 19 & 20 of the IOSH publication ‘systems in focus’. (It doesn't appear in the Publications section of the IOSH web site.)

Also, when you say: "If you are suggesting that Section 44 of the Employment Protection Act should be considered the Cornerstone of United Kingdom, surely this goes completely against the Robens ideals within the Robens Report published in 1972?" I'm familiar with the Report but it isn't clear to me what you mean.

I appreciate and value the maturity of your approach to this contentious issue and I'm grateful for your confirmation (that's what it seems to be) that everyone (i.e. at IOSH) wants to be transparent.

It really is the most positive news.

We have established in this discussion that given how significant this piece of legislation is there is a disproportionately 'low level' of awareness of its existence.

We have also identified certain foreseeable implications of continuing to ignore it - and potentially adverse conditions that might go with highlighting its existence.

I feel it is safe to say that no member of IOSH would want the 'deception' of employees to continue any longer and that nobody who has followed this thread would think that it is morally right to continue to keep employers in the dark either!

IOSH could do so much to protect employers (particularly SME firms) by providing a clear, concise, easily comprehensible explanation of (and advice on) S44.

By publishing (and ensuring a high level of awareness of) the 'advice', IOSH would be helping to protect the thousands of people who go to work each day knowing the safety arrangements to protect them are hopelessly inadequate and at the same time help to ensure public safety too.

There seems to be no reason not to and at the same time every reason to do so.

But, will it happen?

Best wishes,

Jim O'Dwyer



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#36 Posted : 10 November 2003 09:25:00(UTC)
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Posted By Jim O'Dwyer
CORRECTION!!

In my last posting, I said that the CBI had recently warned that as many as 2 in five firms were operating (illegally) without appropriate PL Insurance cover.

I was wrong!

The figure is actually 2 in ten (i.e. 1 in 5)

Also, whilst the law requires employers to have appropriate insurance in place to cover liability arising from injury or illness sustained by employees while they are working, a lack of Public Liability insurance is not in itself illegal.

I apologise for the error and regret any anxiety it may have caused.

Best wishes,

Jim O'Dwyer

P.S. This correction doesn't affect the advice to verify the other guy's insurance cover!
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#37 Posted : 10 November 2003 09:51:00(UTC)
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Posted By Robert K Lewis
There could be a two edged sword here, particularly if the litigation culture of the states reaaly moves here - If the employee has a clear right to stop work and he doesn't and carries on and is injured - is the employee contributing to the injury and therefore partially liable at least?

Before everyone throws their hands in the air the unions in the US have found that the employer did begin to win cases by exploiting the rights and abilities of employees to prevent or stop work, which had been defined much as our legislation does. In fact without the removal of responsibility from employee and union reps. it is possible we could have gone this way some time ago - section 44 could therefore be totally regressive for the remainder of employees!!!

Bob
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#38 Posted : 10 November 2003 10:18:00(UTC)
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Posted By Jason Gould
Hi again Jim & Others

The layman here again

Sorry Im starting to get a little confused now, so Im putting a scenario accross to you all for your individual approach as to what law actually does protect me as a worker.

SCENARIO

Ive joined an agency today as a stacker driver.

The job involves Loading pallets of toilet tissue onto 40ft wagons.

The warehouse is tiny which at times leaves a single channel to go back and forth at high speed as drivers have time limits to get to depots.

Management and drivers start floating on warhouse floor to push speed by assisting with pump trucks etc.

Very stressfull and unorganised and at very best, only going to be a matter of time before someone is struck by a truck or racking collasped and stacks fall on someone.

The management know of the situation but have not got the rescources to build larger warehouse etc.

What would be the my best reasonable action to take, considering the following.

1. Just quit the job and ask agency to find work elsewhare due to conditions (fat chance they would do)

2. Whisle blow the company and risk others being forced out of work in other safe departments. (cant see any pats on the back from managers or fellow workers)

3. Refuse to rush the work and stick to forklift driving best practice speeds etc. ( get sacked)

4. Approach manager and remind them of theirs & my responsibities under s44 EPA 1996.

5. Try using the Management or HSWA 1974 regs for change.

6. Just report my concerns and accept that this comapy does not have funds or managemet skills to change for the immediate future and carry on working.(probably the most common situation)

I have left out some possible actions, but Im trying to remain on the side of the worker. Bear in mind I may not have even been Iducted to the company, and being an agency worker, probably will never be told of s44.(if it even counts for tempory workers)

What I could be forgiven for thinking, is that, to the simple man/woman or employer this piece of leglislation could be as effective in change of attitudes towards safety than most of the past Laws.

( could have a very devastating or positive effect if it was well known to the majority )

If these Laws are really out their WHY IS IT NOT EXPLAINED MORE CLEARLY TO THE WORKERS?

Did a safety induction test for a very large agency last year and remember arguing about a question.

(Q) Who is responsible for your safety whist at work.

(my answer) Both the employer and myself

(wrong say they)

(their answer) Im responsible for my safety and the safety of others. (he then goes on to say I will not get far with that attitude.

Never got offered any work. (this question was one of many other statements twisted in favour of the employer that I have come accross)Some comanies are transaprent and others throw muck in to elude the staff.

Conspiracy Mmmmmmm Ive got to say though I dont fully agree, I dont blame the layman for thinking so!

Thankyou all

Jason out





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#39 Posted : 10 November 2003 20:10:00(UTC)
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Posted By Grant Hutchison
In addition to being covered by the employer's common law and statutory duties towards them, employees have enjoyed, since August 1993, the right to be portected from action taken against them by the employer because of specified health and safety activities.

The Employment Rights Act 1996 gives employees protection against dismissal or action short of dimissal. Section 44
(action short of dismissal) and s.100 (dismissal) are similar and are divided into six sub sections. They state that an employee has the right not to be subjected to any detriment or to be dismissed by the employer on specific health and safety grounds.

Any dismissal on one of the listed health and safety grounds will be automatically unfair, as will selection for redundancy on such grounds. Dismissal in this case could include constructive dismissal but only if any action which an employer took against an employee raising health and safety concerns amounted to a fundamental breach of contract

NEBOSH DIPLOMA PART DEUX does cover this as I am presently completing an assignment titled - Explain how health and safety law interacts with, contract law, employment law and consumer protection law.

Speak to your Human Resources Departments, they will tell you all about employment law!

Grant

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#40 Posted : 11 November 2003 14:48:00(UTC)
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Posted By Yetunde Ruban
I would not say there is a conspiracy of silence in relation to s44(action short of dismissal for health and safety reasons) and section 100 (dismissal). I am a practising barrister and I can say that in the past year, I have had 2 cases where the employees had relied on both sections 44 and section 100, one employee brought the claim at first as an individual and the second with the support of his union. And as far back as 1998, I was dealing with other cases brought under the same provision, yes very few, but there is no doubt that the unions were aware of these provisions. I would also say that those who work in law centres and other legal advisers were well aware of them.
The problem with section 44 (and indeed section 100) is that the employee has to jump through several hoops before he can claim the protection of those two sections. Where the employee is designated by employer to carry out health and safety duties, a workers’ representative , or member of a safety committee the claim is very straightforward. Where he is none of these, then it gets complicated: he can only come within the protection of section 44 if there is no such representative at the work place or, if there was one it was not reasonably practicable to raise the matter with the representative. In addition the employee has to satisfy the tribunal of the following: the matter must be connected with his work;
He must hold a reasonable belief that the matter is harmful or potentially harmful to health and safety; and that he brought the matter to the attention of his employer by reasonable means.
The employee can leave the work place (or refuse to return while the danger persisted), or take appropriate actions to protect himself or other persons from danger only in circumstances of danger which he reasonably believes is serious and imminent and he could not reasonably be expected to avert he danger.
As you would have guessed, that is not the end of the matter, without boring you any further, there are other qualifying provisions and employers’ defence in the sub paragraphs that follow. Obviously as you would expect, these are all subject to judicial interpretation as contained in established case law.

Suffice it to say that the provisions are in themselves a minefield and one which employees find difficult to navigate.

In the alternative, an employee can quite easily rely in the employment tribunal on an implied duty of the employer to provide a safe working environment.

The difficulty I think for employees, as always, is obtaining timely and correct legal advice.
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