Returning to work? Section 44 explained

There’s been a lot of talk about ‘Section 44’ since Boris Johnson announced plans to ease coronavirus lockdown measures at the weekend and advised some people to return to work. But what does Section 44 actually do, and what does it mean for you if you’re returning to work tomorrow?

Section 44 is a section of the Employment Rights Act 1996, a key piece of legislation covering the rights of every employee. It can offer you protection if you refuse to work when you have a reasonable belief there is a ‘serious or imminent danger’ to your health and safety or that of others around you. I stress here the ‘can’ – it depends on the specific situation.

The TUC’s coronavirus advice to unions cites Section 44, and many employees have already used it in the coronavirus context. So who exactly does it protect, and how can it be used?

You have the right to safety at work.

You have always had the right to work in a setting where all possible steps to avoid risk of exposure to what can be reasonably deemed as a serious risk to your health have been met. This right continues to apply during Covid-19.

While we are yet to see comprehensive advice from the government on recommended safety precautions for coronavirus, there are existing laws and guidance that already protect workers.

Under the Health and Safety at Work Regulations Act 1974, it is a legal requirement for bosses to carry out a workplace risk assessment and for them to be written down.

Recent government guidance goes into greater detail on what may be required to protect employees from the risk of transmitting Covid-19. These include social distancing measures such as 2-metre spacing, or personal protective equipment depending on the type of work.

The Health and Safety Executive has confirmed that its remit covers public health guidelines and it will enforce them. The Prime Minister has also said that the HSE will be undertaking spot checks to ensure workplaces are complying with their obligations. Actions the HSE can take against employers include closing workplaces and prosecuting bosses. Only a foolhardy boss would ignore a more inquisitive and active regulator in this context.

While the government’s guidance isn’t yet finalised, it is likely that any of the following are strongly suggestive of breaches of your rights under health and safety rules:

• Failure to introduce specified social distancing measures;
• Failure to provide the necessary and appropriate personal protective equipment;
• Failure to allow extremely vulnerable workers in the ‘shielded’ category to observe NHS advice.

If, after voicing concern, a serious or imminent danger persists, you and your colleagues are protected by law if you leave (or – if you wish – propose to leave) work. Getting advice from your union or a lawyer first is always recommended – they can advise on whether your concerns are likely to meet what is considered ‘serious or imminent’. Refusing to work could mean staying at home, walking off the job or refusing to carry out specific work duties.

The precise law, which it may be helpful to quote to your employer, says:

Section 44.1 (d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

The law covers all ‘employees’ but it does not include all workers or self-employed contractors. However, do be wary that unscrupulous employers frequently miscategorise staff to avoid their obligations, so don’t just take their description of you without questioning. You can use the government’s checker as a blunt tool, but there is no substitute for proper union (or legal) advice.

In addition to exercising your rights in line with the law, trade union representatives and officers can report concerns of breaches to the HSE via [email protected].

Seek advice.

The law judges the appropriateness of any walk-out or proposed walk-out based on Section 44 on the ‘knowledge, facilities and advice’ that were available to you at the time. You do not need to exhaust all avenues to work out if something is genuinely a serious and imminent danger.

If you are worried, it is important to contact your health and safety representative or a relevant trade union officer. They are likely to have knowledge of the law as it applies to your specific type and place of work. They can advise on practical next steps, access legal opinions where necessary and make the demand for safe working a collective one – taking the onus off you as an individual.

Make sure you communicate any actions, and your reasons, clearly to your employer and make a careful written, dated record of what happened – you may need it later.

You are legally protected from dismissal.

You have the right not to be victimised as a result of refusing to work in danger. The law protects you from unfair detriment, meaning your boss cannot legally dismiss, discipline or dock your pay if you are:

• Raising health and safety concerns;
• Leaving, or refusing to leave, a place of work in circumstances of serious and imminent danger;
• Taking steps to protect yourself or others;
• Carrying out your functions as a trade union representative.

If, after raising concerns and seeking advice, the danger persists, and you decide to take action – you will have the backing of the law. Section 100 of the same Act states:

(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that — (d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work

This allows you to ultimately bring a claim in an employment tribunal for compensation (under s.48 and s.49), which the courts determine include both (a) any of the losses you suffer, such as lost commission or docked pay, and (b) an amount to reflect any injury to feelings that you suffer.

You are not alone.

If you are considering refusal of work, know that you are not alone. There is a precedent for taking this type of action. Many employees all over the UK are asserting their rights in the same way during this crisis, and your union will have your back. Library, postal and refuse workers have all already walked off the job over coronavirus exposure concerns, citing Section 44.

There is strength and safety in numbers: most of those who have taken action have done so with the advice and support of their union. You need to show you have ‘reasonable belief of serious or imminent danger’, and your union will be able to advise on the veracity of that claim in your specific situation. And if you haven’t joined a union yet, this crisis has shown why there is no better time to do so.

The TUC is running a webinar, “no return to work until it’s safe”, with union workplace reps on May 14th. You can register here.