By Marian Mayer
The Covid pandemic has led to a crisis of health and safety in post 16 education. Health and Safety legislation is our greatest tool to protect members’ working conditions. Many of us are working from home, some of us remained working on campus (often for spurious reasons). Some colleges will be returning to the workplace, without assurance that it is safe to do so. Across the post 16 education sector there are too many instances of employers failing to engage with unions on health and safety concerns.
This is where we can use the legislation to compel the employer to do so.
The Health and Safety Executive has issued guidance for safe return to work:
- Guidance index
- Risk assessments
- For labs and research facilities
- Working from home
- Office working
- Covid security
ACAS guidance states that:
“Employers should ‘consult’ with staff (i.e. ask for and consider their views to try and reach an agreement) about returning to work.
- trade union representatives
- employee representatives
- health and safety representatives
Employers should also check any agreements they have with a trade union or employee representatives to see if they must formally consult.”
In addition, Thompsons Solicitors have issued guidance from which I quote here:
“Employers are required to carry out a “suitable and sufficient” risk assessment to identify the risks to the health and safety and take “reasonably practicable” steps to eliminate or reduce that risk.
Employers must consult employees and health and safety representatives in good time on health and safety matters including what the risks at work are, the steps taken to manage and control those risks and how information and training will be provided. The duties referred to above are set out in the Health and Safety at Work Act 1974 and various other health and safety legislation. An employer also has a common law duty of care, breach of which will amount to a breach of contract. As part of its ‘back to work’ strategy on 11 May 2020, the government published ‘COVID-19 Secure’ sector guidance requiring employers to carry out specific “suitable and sufficient” risk assessments into the risks to their workers’ health and safety from coronavirus (COVID-19) and take “reasonably practicable” steps to eliminate or reduce that risk. These risk assessments must be published on the employer’s website where the employer employs more than 50 people.”
Using any and in some instances all of these resources and legal obligations on the employer we can protect our members.
Joint action with Unison in our branch
On the last day of our four fights strike action, Friday, 13 March, as co-chair of our branch I was contacted by our University’s chief operating officer, keen to discuss how UCU might work with our institution in responding to the Covid pandemic. We met on Monday 16, and together with our sister union UNISON began negotiations and discussions about how we might manage a number of matters which we jointly consult, especially Health and Safety. We worked through all of the concerns our members were raising, and led the University on closing the campus, at our behest, albeit with just 2 days’ notice, on 27 March.
We established a weekly Covid/Unions/Senior Management committee, and subsequently a Covid Health and Safety committee, again we met weekly.
The unions requested a Covid-specific Risk Assessment, which has been agreed in principle. I proposed adapting a process based on Unite’s excellent advice and information, incorporating the UCU five tests. We agreed on a joint stress risk assessment to capture data on the impact of working from home and returning to campus. The unions asked for a definition of ‘critical work’ that could be done on campus during the shutdown, and this was scrutinised. Other outcomes from the Health and Safety committee included the establishment of a subgroup, tasked with working through all of the university’s return to campus activities, Covid risk assessments, and any other operational H&S related matters. These are all subsequently reported to the health and safety committee for scrutiny and approval.
At the time of writing, BU UCU has withdrawn from the health and safety committee. We were concerned that the agreements we were making were not translating into action. It had not been possible to get a definitive list of the ‘critical work’ being done on campus, in fact we couldn’t get the definition of what critical work might be. We learned that work which was clearly not critical was being undertaken. We also became increasingly concerned that the dismissal of staff on fixed term contracts and the ending of part-time hourly paid contracts (the precariat who joined us in taking industrial action to end casualised work in HE) would inevitably lead to the imposition of heavier workloads for those left to pick up ongoing work.
The lack of risk assessments for individuals and teams in areas where these contracts were being ended made clear to us that the commitment to do Covid health and safety risk assessments was unlikely to be implemented. Given that risk assessments should already have been undertaken to prevent stress and ill-health to staff who would be expected to undertake ongoing work.
Health and safety related casework is both a priority, and the most effective way we can challenge unsafe working places and practices. This work links inextricably to equality impact assessments, we argue required under the Equality Act 2010, and the legal frameworks that protect workers, principally, the Health and Safety at work etc Act 1974, Workplace health, safety and welfare. Workplace (Health, Safety and Welfare) Regulations 1992. Approved Code of Practice and guidance and the Employment Rights Act 1996.
Protecting the Health and Safety of staff under threat of dismissal
There are a number of generic health and safety and equalities protections and negotiating/consulting approaches you can refer to.
Remind your employer they do have to meet the legal frameworks and there duty of care:
- Equality Act 2010,
- Health and Safety at work etc. Act 1974,
- Workplace health, safety and welfare. Workplace (Health, Safety and Welfare) Regulations 1992. Approved Code of Practice and guidance
- Employment Rights Act 1996.
Ask, either through your health and safety committees, or your joint consultation and negotiation committees, for data relating to all fixed term and casual contracts. Ask for this to be broken down into equality data, and Impact assessments if any of these contracts are to be ended. Be vigilant, we are asking members to give us the same data, without naming colleagues obviously, but to inform us and help us to understand the likely impact on their workloads. Ask also for the published risk assessments, which are a requirement under government guidance (see Thompsons Solicitors advice above). And ask for this to be publicly available and accessible on your employer’s website).
Below is an excerpt from correspondence relating to the ending of a fixed term contract where unquestionably not only was the work ongoing, but there was a serious stress hazard, extant in this programme team, which would be exacerbated by the dismissal of this particular member of staff. Shockingly, the employer was aware for 3 months, prior to the notice of dismissal that this situation was urgent. As the member’s caseworker, after I had objected to procedural and process errors I complained that I had not been copied into the dismissal notice. Union representation is always a right of any employee being subjected to a dismissal process, I asked the following questions:
“…In the meantime would you please be so kind as to forward the following information which I request under per the Trade Union and Labour Relations (Consolidation) Act 1992, the Equality Act 2010, and health and safety legal frameworks:
- The Health and Safety risk assessment conducted prior to the issuing of this notice in relation to the dismissal of […] in particular the impact on the programme team.
- The Equality Impact Assessment undertaken prior to the issuing of this notice in relation to the dismissal of […], with particular reference to the impact on the Department.
- Has the faculty assured itself that […] contractual terms and conditions have not been breached, in particular, aspects of custom and practice of which the faculty and department are aware.
- What if any strategy the department has ready for the inevitable complaints and concerns students may raise, in particular in relation to teaching quality and access to academics in the department and programme? My expectation is that such a strategy would account for the specific expertise that […] brings to the team.
- Have you a considered response to what BU UCU believes is a significant prospect of an increased number of student complaints and appeals, both to the faculty and to the Office for Students. BU UCU members are concerned that they could be named in complaints resulting from the unmanageable expectations placed on staff in the programme team and department. Is the university taking steps that will prevent such complaints and protect staff from them in the event that they arise?”
With thanks to UCU Queen Mary University of London’s advice and information, shared widely and generously. This is an ongoing case, which we will defend vigorously, using both Health and Safety legislation, employment legislation, and the institution’s grievance process.
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