Health and safety detriments: Advice to teachers from the National Education Union

The first week back at work in the New Year started with a debate around whether schools should reopen on 4^th January 2021. The Prime Minister appeared on Andrew Marr’s show on Sunday 3^rd January and stated that it was safe for schools to reopen and that they should follow the Government’s guidance at that point and do so. We all now know that the PM made an announcement on Monday 4^th January that England would be going back into lockdown and that schools should close until at least mid-February with the devolved governments to announce similar measures. However, the events leading up to the imposition of the new lockdown raised some interesting employment law issues which may be relevant to employers going forward.

Advice received by the National Education Union

The NEU is a trade union which represents employees within further and higher education, including schoolteachers and lecturers. The NEU sought legal advice in advance of the schools reopening in response to concern from its members that due to the recent rise in coronavirus cases, as well as the discovery of the new strain of COVID-19, it was not safe to return to face-to-face teaching. Importantly, they advised their members that they should write to their head-teachers using a model template letter, stating that they would not be attending work on the basis that it was not safe to do so. The NEU subsequently confirmed to the Department for Education that they have now withdrawn this campaign. However, the crucial point from an employment law perspective is that the letter makes specific reference to Section 44 of the Employment Rights Act 1996 (ERA) as the basis for this refusal.

What is Section 44 of the Employment Rights Act 1996?

Section 44 ERA states that an employee has the right not to be subjected to any detriment by his employer for any act, or any deliberate failure by him to act, in relation to health and safety concerns connected with their work that have been raised, either by the employee themselves or by a safety committee. Practically, this means that, for example, if an employee were to be subjected to a disciplinary procedure as a result of refusing to attend work over health and safety concerns, they could seek to argue that they have been subjected to a detriment and bring a claim against their employer under S.44 ERA. In particular, where the disciplinary sanction imposed is dismissal, the employee could seek to argue that this dismissal was automatically unfair and as a result, they would not need 2 years’ continuous service with the employer to bring such a claim (S.100(1)(d) ERA).

What to do if an employee refers to health and safety concerns and/or S.44 ERA?

We had expected to see more employees referring to this piece of legislation in 2020 following the imposition of the first lockdowns, but it seems that it is now gathering more traction. It will be important to ensure that any concerns raised by employees about the safety of their workplace are heard, considered and any necessary actions are taken in response. However, where an employee is refusing to return to work on health and safety grounds, we would recommend seeking specialist advice, as this is a sensitive and potentially risky area.

Comment

It is important that employers are aware of S.44 ERA and how their employees may seek to rely upon this where they do not believe their workplace is safe to return to. TUC, the trade union, have now called for the Government to update its health and safety guidance for employers in light of the new coronavirus strain. Although it remains to be seen whether such changes will be made employers should nevertheless continue to ensure that the health and safety measures they have put into place are being robustly implemented and adhered to. Doing so will ensure that they are providing the safest possible working environment for their employees, as well as demonstrating they have taken the necessary steps to make the workplace safe, so as to avoid or respond to any arguments raised under S.44 ERA.