Trade union law specialist Neil Todd comments on employee rights during the pandemic
As a social justice law firm, Thompsons Solicitors has long supported trade union members in industrial actions concerning their workplace safety. With hundreds of staff at the Driver and Vehicle Licensing Agency (DVLA) in Swansea continuing to strike in a dispute over COVID-related safety protocols, we asked Neil Todd – a senior trade union law specialist at Thompsons - what wider concerns the issues at the DVLA raise about employee rights when it comes to COVID-19 and workplace safety moving forward.
Who should be looking out for employee safety during the COVID-19 pandemic?
Under the law, the primary duty lies with the employer. They should ensure, as far as reasonably practicable, the health and safety of their employees - something which is even more important while COVID-19 continues to spread through our communities.
Employers need to work out what the risks are, follow all legal guidance and put a sensible plan in place to deal with them. If risks cannot be completely eliminated, they need to be managed, controlled and reduced to the lowest possible level.
They also need to consider the characteristics of workers. For example, it is widely known that BME individuals are at a greater risk of falling ill from COVID-19, so an employer must consider this as part of its health and safety guidance during the pandemic.
What is your advice to people who feel that their workplace is not safe. What should they do?
Workers should first raise concerns with their managers – ideally before they put themselves in an unsafe position. Two-way conversations between employers and employees are vital before, during and after a return to work.
Employees should also make sure they are well-informed when raising concerns. The Health and Safety Executive (HSE), as well as the UK nations’ public health authorities, provide clear guidance online on what their rights are, and we recommend reviewing these before making a complaint.
If concerns aren’t heeded, workers should contact their trade union representative or, if their workplace isn’t unionised, a health and safety representative. If the concerns are deemed significant – in they could lead to injury or illness for large numbers of employees – then the representative may suggest raising it further, such as to the HSE.
What protections are there for employees who raise concerns about workplace safety?
Section 44 of the Employment Rights Act 1996 provides a right for an employee to leave their workplace or refuse to return to their workplace if there are circumstances of danger that they believe to be serious and imminent, and which they could not reasonably be expected to avoid.
Employees who exercise their judgement in this way and take this action should not suffer any detriment as a consequence of doing so. In addition, an employee who raises a concern because they have a reasonable belief there is a danger to the health and safety of an individual, and it is in the public interest to raise it, can assert that their disclosure is protected by law. This is known as a ‘protected disclosure’, or more commonly as whistleblowing. This can provide protection against an employee being subjected to a detriment or dismissed at work.
What about workplaces where employees flout the safety measures that have been put in place?
From what we have seen, the vast majority of workers take their safety and that of their colleagues very seriously.
If a worker thinks their colleague isn’t playing ball and it can’t be resolved between then, they should raise it with their health and safety representative, who can take it up with management. Ultimately, if an employee doesn’t feel safe, they may have to bring the problem to their supervisor or manager’s attention, but they should try not to make it a personal issue.
In the future, will employers bring in ‘no jab, no job’ policies?
The government has made clear that it is opposed to making the vaccine mandatory. Section 43E of the Public Health (Control of Disease) Act 1984 specifically prevents the government from making regulations which require a person to undergo mandatory medical treatment, including vaccination.
That being said, the Advisory, Conciliation and Arbitration Service (ACAS) encourages employers to support staff in getting vaccinated, with businesses being urged to outline the benefits of vaccination in order to increase take-up by offering paid time off to attend appointments. But if an employer was to make it a requirement for an employee to have the vaccine, they would need to change the terms and conditions of employment, as current contractual terms are extremely unlikely to provide for it. This will require consultation with employees and there should also be consultation with trade union in workplaces where they are recognised.
Employers are under a duty to provide a safe place of work. On this basis, it is possible to see why they may want to introduce policies that require as many members of staff to be vaccinated as possible. However, they also need to be mindful of other obligations under existing legislation. For example, an employer who makes it a condition of employment to have a vaccine may find themselves facing a complaint that they have discriminated against a worker under the Equality Act 2010. For example, a disabled worker may refuse the vaccine on medical grounds, and if their employer forces them to have the vaccine, they may be liable for discrimination claims. Employers may also be faced with objections from employees concerned about a potential invasion of their human rights if they are required to have the vaccination.
Employers will need to consider these sorts of cases on an individual basis and should work closely with trade unions to find solutions that can both keep workplaces safe and accommodate individuals with specific issues relating to the COVID-19 vaccine.
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