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

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.

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.

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.

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.

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.

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

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

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.

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

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

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?

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

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

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

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.

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?

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!

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

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.