Section 44 – Employment Rights Act 1996 the secret to getting safe working conditions in the UK
A Government Policy to keep people in the dark about rights and entitlements?
The Government appears to be complicit (if not the guiding hand) in the conduct of a strategy that involves the cooperation of a number of official bodies and others, (including the TUC ) which is:
1. Designed to mislead employees about their legal responsibilities and keep them in the dark about their rights and entitlements.
2. Intended to prevent employees performing a vital safety role (i.e. ensuring employers maintain satisfactory standards of workplace safety.)
3. Enabling employers to operate with unsatisfactory safety arrangements that put people (employees and the public) at risk.
4. Having the effect of holding back safety improvements.
Unlikely, but true!
It may seem incredible, but it’s the only possible conclusion.
The indisputable proof lies in the fact that, although the law clearly gives employees the upper hand * over employers in disputes about the adequacy of safety measures and leaves no excuse for tolerating unsafe working conditions, millions of people still go to work every day knowing that the safety arrangements at their workplace are inadequate.
* By enabling employees to withdraw from the workplace, without fear of recriminations and remain on full pay while the employer remedies the shortcomings. (S44. Employment Rights Act 1996)
How have people been kept in the dark?
The way people have been kept in the dark has been a subtle and consistent lack of transparency. Those responsible for producing and publishing official guidance and instructions have simply not disclosed all the relevant information in easily comprehensible terms.
The rationale behind the “Policy”
Telling employees about their legal rights/duties would (as the law and the legislators always intended) hand them direct control over expenditure on workplace safety provisions (i.e. by being able to insist on suitable safety arrangements.)
Whereas, by ensuring employees aren’t aware of their rights and responsibilities, employers have been able to keep control over expenditure – and avoid the expense of making safety improvements!
It began when the UK Government, as a member of the Council of the European Communities was obliged to comply with DIRECTIVE 89/391/EEC, dated 12 June 1989. This required Member States to introduce measures to encourage improvements in the safety and health of workers at work.
S44 Employment Rights Act 1996 was created in order to comply with Article 8 of that Directive.
Here is the thing.
A government official* made the decision NOT to include the new ‘health and safety at work’ provisions (i.e. arising from Article 8) in the Health and Safety legislation and instead chose to hide it way in Employment Rights legislation.
This decision effectively meant that the HSE (whose statutory responsibility is to inform employers and the public on health and safety at work matters) could claim that their remit did not extend to explaining Employment Rights law – and so not mention it.
(*That person is traceable and could be held accountable – but more than likely won’t be!)
Added to that, when the Health and Safety at Work Act 1974 came into force, the approach taken by the HSE was effectively ‘non enforcement’, ostensibly to help prevent organisations collapsing under the expense of having to meet the new statutory obligations incorporated in the Act.
The ‘policy’ was supposed to be a temporary measure to give employers time to prepare and budget for the necessary improvements.
The problem for the authorities has been that, despite the time that has elapsed since then, a good time to come clean has never materialised.
But, keeping quiet is not in anyone’s best interests.
The effect of the lack of transparency:
1. Employers have maintained almost absolute control over decisions about the adequacy of safety arrangements.
2. Safety Standards have not improved as fast as they should have done.
3. Millions of people have been (and continue to be) duped into putting themselves at risk and getting hurt where they might otherwise have remained safe.
4. Millions of incidents which could and should have been avoided have resulted in injury, misery and expense.
Who is to blame for this shambles?
The finger of blame points directly at HSE’s Senior Management – because HSE's has had the most control and influence over the way Health & Safety responsibilities have been explained and conveyed to the public. However, the fact that HSE’s explanations have been so unquestioningly supported by others has undoubtedly compounded the problem.