Posted By Jim O'Dwyer
Hi Jason,
Sorry for the delay in coming back to you.
I am as keen as you are to establish the facts in relation to S44 and I think that examining the "scenario" you provided is a good idea.
Can I make it clear to you right from the start that whilst I feel I have a handle on this, I am not a qualified lawyer. I am not providing you (or anyone else) with professional advice and it should not be considered as such. I recommend seeking legal advice before acting in reliance on any of the information provided below.
That said, here we go.
The law expects (and encourages, protects and supports) employees to always:
Behave "as an ordinary cautious person" would
Avoid taking risks
Sing out if they have a concern about safety
Disengage from unsafe practice
Withdraw in circumstances of serious and imminent danger which they could not expect to avert
Act in the public interest - including drawing public attention to serious safety deficiencies (i.e. whistleblowing)
Performing 'duty' can sometimes be onerous, but:
If serious safety shortcomings existed at a venue which you frequented, would you expect the staff to highlight them, or keep you in the dark and give you the impression everything was fine?
If, you carried on working, knowing full well the circumstances were unsafe and got hurt, could you really expect compensation?
If, you carried on working knowing full well the circumstances were unsafe and you ended up hurting someone, could you feel free from guilt?
If, you carried on working knowing full well the circumstances were unsafe and someone got hurt would you feel guilty?
If, you became aware of a serious safety concern, didn't draw your employers attention to it, just carried on working safely yourself and then (just as you thought would happen), someone got seriously hurt, could you forgive yourself?
If, you became aware of a serious safety concern and didn't draw your employers attention to it, you just quit the job and then after you had left (just as you thought would happen) someone got hurt, would you feel any less responsible?
Would you prefer to go to sleep with an easy conscience?
If your employer (or anyone else for that matter) disputes your contention that the work you are being expected to carry out is likely to result in someone being seriously hurt you shouldn't let it affect your decision not to do the work. Let an Employment Tribunal decide. That way, you won't get injured, and you won't be responsible for someone else getting hurt. You will simply be in dispute with your employer and the law will be on your side.
It's always going to be your choice!
Nobody can lawfully expect you to, or order you to do anything which puts you - or others at risk of harm.
Everyone who works has the right to refuse to do unsafe work and can claim protection under S44. (i.e. including agency staff and individual contractors)
If, in your judgement, the way a work process is being conducted represents a real risk of harm happening you should discontinue the work and, in the first instance, withdraw to a place of safety.
You should then, without unreasonable delay, (warn others of the danger!) notify your supervisor/ manager/ employer of your concern (preferably in writing) and invite remedial action to reduce risk.
You should also liaise with your safety representative is there is one.
The next step is to discuss and consider the action proposed by the management in response.
If you are satisfied that action taken sufficiently reduces the risks you may decide to resume working (and you can make the decision to do so anytime.)
However, you should not recommence working until the danger has been eliminated or minimised to a level which, in YOUR judgement, is acceptably safe.
If, in YOUR opinion, YOU feel that the action taken by the management is insufficient (i.e. still leaves you at risk of serious and imminent danger) you should:
Immediately make your feelings known to your employer (in writing)
State your concerns (in writing) and make it clear that you are not prepared to continue to put yourself (and/or others) at risk
Make it plain (i.e. in writing) to your safety rep and your manager that you are REFUSING TO WORK ON SAFETY GROUNDS
If it is just a particular process that presents a danger, you could consider just refraining from carrying out that process whilst dialogue continues to resolve the difference of opinion.
You could also offer to work in a different area of the workplace away from the risks complained of (while remedial action is taken!)
If, a persistent risk of serious and imminent danger exists throughought the entire workplace you would be entitled to withdraw from there completely (But, good advice would be to make a point of always being 'available to work')
Maintain continuous dialogue with your employer. Explain that you are refusing to do the work not just in your own interests but also the interests of colleagues, others who may be affected and also the company you work for. Draw attention to the aims and intentions published in their Health and Safey Policy and point out the conflict with what they are saying and what is written there!
Remind your employer (in writing!) that (under S44.) you are FULLY PROTECTED against suffering detriment (e.g. reduced/ stopped pay) for taking action on safety grounds to remove yourself from danger - and you will claim that protection immediately if your rights are breached.
You are not obliged to, but if you and your employer can't come to mutual aggreement about the adequacy of the safety arrangements you might consider inviting advice from the appropriate government enforcement agency (HSE / LA)
If, after intervention by the enforcing body, you still feel that the safety risks remain, there is no obligation on you to recommence working!
The enforcing bodies are NOT the final authority on safety at work - the courts and employment tribunals are
If, you and your employer remain in dispute about the adequacy of the safety provisions - either party can apply to an employment tribunal for adjudication. (This takes a minimum of 3 months to arrange.)
If you are off work on full pay there is little incentive for you to resign and it seems to me that you would be entitled to remain off work and on full pay indefinitely (i.e. while the danger remains). However, in the event that your employer refuses to take appropriate action to reduce the risks, it would be open to you to resign and claim "Constructive Dismissal" and damages at an employment tribunal.
Your employer (won't like you being off work and on full pay and) may try to reduce/ stop your pay or even sack you, in which case you can claim (and be likely to win) a case of "Constructive Dismissal" at an employment tribunal
It appears that the only legitimate action an employer can take is to either remedy the deficiencies in the safety arrangements or apply to an employment tribunal for a decision as to the adequacy of the safety precautions.
An employment tribunal will decide whether the safety arrangements are adequate or not. If the tribunal considers your safety concerns are legitimate they may order the employer to take appropriate remedial action. The tribunal may also order your employer to re-employ you, if that is your wish, and (because it is a safety matter) you could also be awarded compensation. Alternatively, you could claim compensation for Constructive Dismissal - and leave the job.
Even if the tribunal ultimately decides the safety arrangements are satisfactory, you wouldn't (in the circumstances you described), be criticised or penalised. 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
You may also have a separate cause of action against your employer for breach of contract (i.e. the general expectation to provide a safe way of working). This, I think, means you could sue your employer in the civil court (as opposed to going to an employment tribunal). If compensation is your primary aim this may be your best route - but you will need to take advice!
"Whistle-blowing"
If you consider your employer is knowingly contravening Health and Safety Regulations and that serious harm is a likely consequence you may have a 'duty' to expose the wrongdoing by "blowing the whistle"
UK law recognises how important it is that employees 'Blow the Whistle' in circumstances in which they believe:
(1) The health and safety of any individual has been, is being, or is likely to be endangered
(2) A person has failed, is failing, or is likely to fail to comply with a legal obligation
(3) A criminal offence has been, is being, or is likely to be committed
(4) A miscarriage of justice has occurred, is occurring or is likely to occur.
(5) The environment has been, is being, or is likely to be damaged
(6) Information showing the above has been, is being, or is likely to be deliberately concealed.
The law encourages employees to call public attention to such situations by protecting them against all forms of recrimination from their employer.
The Public Interest Disclosure Act provides full protection for employees against all forms of recrimination by their employer consequent to the disclosure of any information to any party, provided the information passed was made:
1. In good faith, and in the belief that the information is true
2. Without the purpose of personal gain
3. In the belief that if it were to have been disclosed directly to the employer that the employee would suffer detrimental treatment, that the evidence would be concealed or destroyed, or where a previous disclosure to the employer has not resulted in a suitable response.
This 'protection' is not restricted to employees and includes agency staff and individual contractors as well.
Employees who are subjected to any form of detrimental treatment because of having made a "Protected Disclosure" can claim relief in employment tribunals.
Any dismissal would be automatically unfair and could also lead to a compensatory award or an order for re-employment.
NB: Any agreement or Contract that attempts to prevent a 'protected disclosure' being properly made will be automatically invalid.
Warning!
Just because the law says that 'whistleblowers' are fully protected against recriminations doesn't mean that recriminations won't happen! It can be a really rough road. (Be prepared!)
Why have employees been kept in the dark about S44?
I think it is probably clearer to you now why.
Put simply, it's because S44 makes it quite clear that employees not employers that have the upper hand on decisions about safety at work!
A conspiracy to keep employees in the dark?
It may seem unlikely, incredible even, but the evidence not only supports the claim, it makes it the only possible conclusion.
(There comes a point where a series of 'coincidences' becomes so long as to become improbable by chance alone - and the truth reveals itself.)
How have employees been kept in the dark?
The way people have been kept in the dark has been a simple, subtle, consistent lack of transparency.
Those responsible for producing and publishing guidance and instructions on violence at work have simply not disclosed the relevant information in full and in easily comprehensible terms, thus leaving ordinary people with an incomplete appreciation of the true position.
The rationale behind the "Policy" of deception
Telling employees about their legal rights would (as the law and the legislators always intended) hand them complete control over expenditure on workplace safety provisions. Whereas, by ensuring employees aren't aware of their rights and responsibilities employers have been able to avoid the expense of safety improvements!
Seriously?
Yes!
The 'policy of deception' stems back to the time when the Health and Safety at Work Act 1974 came into force, when the approach taken by the HSE was effectively 'non enforcement' in order to help prevent employer organisations collapsing under the expense of having to meet new statutory obligations incorporated in the Act.
The 'policy' was supposed to be a temporary measure to give employers time to prepare and budget for the necessary improvements.
The problem for the authorities has been that, despite the time that has elapsed since then, a good time to come clean hasn't materialised.
Fully aware, just not telling!
The HSE and the other authorities are all fully aware of S44 and the situation.
But, they've all kept stum. Each one of them unwilling to shoulder the responsibility to tell the public.
I'm suggesting that a good time will never come and that it is time to do something about it right now.
Continuing to operate the 'policy of deception' is not in anyone's interests - except perhaps those responsible for having kept the deception going for so long (by protecting them, for the time being, from being held accountable.)
The penalties for not telling are just too high!
In 2002, two hundred and forty nine employees died at work in Great Britain
There were over 27,000 major injuries
2.3 million workers had a health complaint connected to their work
Nearly 33 million working days were lost to illness and 7 million days were lost though work accidents
The UK's bill for compensating victims of accidents at work presently costs eight times the HSE's annual budget of £258m
It is time for me to go now - but I hope what I've written answers your questions and provides others with food for thought.
Best wishes,
Jim O'Dwyer