Know your Rights [note that much of the below was written during the lockdowns, but the more general points regarding health and safety and employer responsibility remain pertinent]

Full “Know your Rights” slides can be downloaded here:

Employers have a general, common law duty to take reasonable care for the health and safety of their workforce

Health and Safety at Work etc Act 1974

• protect the health, safety and welfare of their workforce and others affected by their work activities.
• maintain the place of work (where it is in the employer’s control) so that it, and access to and exit from it, is safe and without risks to health
• “so far as is reasonably practicable”
• duties on employees to take reasonable care to ensure they do not endanger themselves or anyone else who may be affected by their work activities.
• Personal injury claims can now only succeed if they can prove it resulted from their employer’s negligence

The “hierarchy of risk control”

• Risks should be reduced to the lowest reasonably practicable level by taking preventative measures, in order of priority, with eliminating the risk at the top of the list and providing personal protective equipment (PPE) as the last resort.
• It is a breach of health and safety law for an employer to move straight to PPE without considering other ways of eliminating or reducing risk to health and safety.

Regulation 4 of the Management Regulations – hierarchy of prevention and control

• avoid risks altogether
• evaluate any risks that cannot be avoided
• combat risks at source
• adapt the work to the individual
• adapt to technical progress
• replace dangerous work with safe or safer alternatives
• prioritise collective over individual protective measures; and
• give workers appropriate instructions.

If employers know of a health and safety risk – or should have known, based on the current state of knowledge at the time of the incident – they will be liable if an employee is injured, killed or suffers illness as a result of the risk and they failed to take reasonable care.

A 2018 Sentencing Council guideline recommends prison sentences of up to 18 years for employers found guilty of gross negligence manslaughter whose “long-standing and serious disregard for the safety of employees, motivated by cost-cutting, has led to someone being killed”.

Section 44 of the Employment Rights Act 1996 provides workers with the right to withdraw from and refuse to return to a workplace that is unsafe.

Right to refuse work

• if, after raising concerns, there is still a serious or imminent danger, the employee and co-workers may have the right to leave work, depending on specific circumstances
• Section 44 of the Employment Rights Act 1996 (ERA 96)
• Also reasonable adjustments for disabled workers

Sections 44 and 100 of the Employment Rights Act 1996 (ERA 96) deal specifically with health and safety cases. ERA 96 says an employee should not suffer a detriment or be dismissed or made redundant for various reasons including: leaving or refusing to return to a place of work in circumstances of serious and imminent danger, or taking steps to protect themselves or others in these circumstances.

s long as the employee forms a genuine view of a risk that they reasonably regard as serious and imminent, the fact that the employer disagrees with the seriousness of the risk or the appropriateness of the steps taken is irrelevant.

Mr Oudahar, who worked as a cleaner, refused to mop a kitchen floor because of exposed electrical wiring. His dismissal for refusing to mop the floors because of the danger was automatically unfair. The fact that the employer’s maintenance manager disagreed with his assessment of the risk was irrelevant to the automatic unfairness of his dismissal. Oudahar v Esporta Group Limited [2011] UKEAT/0566/10

Even if this view later turns out to have been mistaken. Mr Joao was dismissed from his job as a night porter. He argued that his dismissal was automatically unfair because he was dismissed for complaining to his employer that it was a breach of health and safety legislation to require him to work nine consecutive nights. In fact, he was mistaken in his belief that working nine consecutive nights is unlawful. Joao v Jurys Hotel Management UK Limited UKEAT0210/11