Updated 14 September 2021:
Mask wearing on campus 2021-22
Mask wearing on campus 2021-22 – BUCU update
BUCU advice (24 September 2021) is to use some phrase along the lines, especially in teaching settings:
“Unless you are exempt, please wear a mask to help protect one another”
This has been agreed with the University as an appropriate instruction.
We are receiving a growing number of enquiries relating to how on-campus working practices will operate – especially regarding face-mask wearing.
We believe that the University’s approach to this issue is muddled and inconsistent. Over the summer we were told that it was likely the case that mask wearing would be required in teaching rooms. It has now become clear that this is not going to be the case.
The University has now issued its generic risk assessment for all teaching rooms, which states the following:
CATEGORY 1 (LOWER RISK): “The University strongly encourages staff, students, contractors and visitors to continue to wear face coverings inside buildings and where people choose to wear them they are supported.”
This likely means that in virtually all teaching rooms there will be a sign saying that face masks are “encouraged”.
However, the risk assessments also say that:
CATEGORY 2 (HIGHER RISK): “Where face coverings may reduce the risk of transmission from one person to another e.g. in congested areas, crowded enclosed spaces and where people may come into contact with people they do not normally meet, signs are displayed requesting individuals to wear a face covering with the expectation that individuals will wear a face covering in these areas.”
In these areas, signs will be displayed saying that face masks are “required”.
The obvious problem with all of this is that many, and potentially all, teaching spaces meet the conditions of the second category (higher risk) but nevertheless the University does not plan to make face masks a requirement in teaching rooms.
We ask: surely most, and potentially all, teaching spaces will have conditions which meet the higher risk criteria: ‘congested areas, crowded enclosed spaces and where people may come into contact with people they do not normally meet’ – it is therefore unclear to us why teaching spaces would be exempt from mask wearing?
The reason that we have been given is that the Government has also produced (contrasting) advice on face coverings in Higher Education. This states “Face coverings are no longer advised for students, staff and visitors either in teaching rooms or in communal areas” and that “No student should be denied education on the grounds of whether they are, or are not, wearing a face covering” and that Universities “should not put in place measures which limit the teaching and learning outcome for students, or significantly limit the wider activities offered by the HE provider”.
As you can see, there is a clear contrast between the advice given on Health and Safety grounds (any reasonable interpretation of which would lead you to expect that face masks are required) and the advice given on educational grounds (which exempts people from wearing face masks).
We do not believe the correct balance has been struck. We believe that, in conditions where health and safety requirements dictate it, face masks (unless individuals are exempt) should be a requirement (not only ‘encouraged’).
We all have seen the latest Covid figures and know that infection rates are rising. These rates are obviously going to rise rapidly now that children return to schools and students return to universities. We all know that “long Covid” is a serious and real threat. We have all seen the evidence showing that the vaccinations are becoming less effective over time.
We therefore call for the University to put in place a more reasonable approach to face masks before the start of term.
Know your Rights
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.
COVID-19 risk assessments must take account of the additional risks to anyone who is pregnant or a new mother.
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.
The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, which brought the lockdown into force on 26 March 2020, were “made in response to the serious and imminent threat to public health which is posed by the incidence and spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) in England”.
As 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  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
- Government guidance on face coverings is as follows (updated: 31/07/2020)
- “Face coverings are not a replacement for the other ways of managing risk, including minimising time spent in contact, using fixed teams and partnering for close-up work, and increasing hand and surface washing. These other measures remain the best ways of managing risk in the workplace and government would therefore not expect to see employers relying on face coverings as risk management for the purpose of their health and safety assessments.”
Advice from the TUC makes the additional points on PPE
- The most effective mask for those dealing directly with COVID-19 patients is the asbestos respirator level 3 (FFP3). Tests have shown it reduces the level of exposure by six-fold.
- check masks are not out of date and look out for a certification mark, as this indicates it has met relevant EU health and safety standards
- gloves do not prevent infection.
- It is illegal for an employer to charge for any safety equipment.
- Branches should consider how far government guidance for outbreak management plans complies with the employer’s duties under the Health and Safety at Work Act 1974 and the Regulations that sit under this.
- There are likely to be contradictions in the government guidance but UCU are clear that the duty to implement preventative measures under Health and Safety legislation must take priority and consider the latest data and research.