The government has now released its own âguidancesâ for a return to work by stealth â cutting workersâ representation out of the picture, writes Professor Keith Ewing, President of the Campaign For Trade Union Freedom
Last week the gloves came off. The pretence of government consultation of unions was dropped with the vicious attack on the teachers who decline to go back to work without the assurance that it is safe for their members, their membersâ families, the pupils and their families.
Their view is shared by the Scottish, Welsh and Northern Irish governments and the BMA. It is also shared by the leaders of English local authorities. And more particularly, it is shared by most parents who donât want their kids to become carriers of the disease.
But the British government is desperate for teachers in England to get back to what it regards as their proper function: childminding â so that business can get back to normal.
The episode shows two things. First, the government regards workers â and still more â their unions with contempt.
True, it was reported several weeks ago that the Department for Business, Energy and Industrial Strategy (BEIS) had consulted with unions about easing the lock-down, and facilitating a return to work. This, however, seems designed principally to help provide re-assurance and share the responsibility associated with the return to work in the knowledge that millions of people were fearful.
But there is no indication of any joint planning, negotiation or agreement with the trade unions about the pre-conditions of the return, or of the necessary infrastructure being settled before any return to work takes place.
On the contrary, it appears that the unions were given 12 hoursâ notice of the advice the government intended to publish, their recommendations largely ignored in the eight heavily criticised guidance subsequently published on May 11.
Which brings us to the second point. This relates to the substance of the guidance, which states that:
âThis guidance does not supersede any legal obligations relating to health and safety, employment or equalities and it is important that as a business or employer you continue to comply with your existing obligations âŠâ
Yet each guide (there are eight) fails to set out what the existing obligations are â and each fails to point out that it is not merely âimportantâ to comply, but that it is a criminal offence not to.
In Britain there are 5,613,000 micro businesses (96 per cent of all businesses) that employ fewer than nine workers. They will not have health and safety officers and cannot be expected to know their statutory duties.
It would have been easy to set out (on a single page) the duty of every employer to provide PPE; keep the workplace and workstations safe; make a proper risk assessment; and not to penalise or dismiss a worker for refusing to work where he or she has a reasonable belief of imminent danger of infection.
That said, the guides set out sensible steps to minimise risk. The employer is advised to do its best to minimise the risk of infection. That is obviously sensible. The problem comes at the point where the employer considers it has done what is reasonable and that it would be too much trouble or expense to do more, even though risk remains. This is simply not good enough.
Employers need objective standards to determine whether they have sufficiently minimised risk. The words of the regulations, approved by Parliament, set out what is necessary to be done and these obligations should be stated in government guidance.
In the absence of a clear statement of the law workers face the cruel dilemma of either risking their (and their families) health or earning a living.
In relation to PPE the guides say: âWorkplaces should not encourage the precautionary use of extra PPE to protect against Covid-19 outside clinical settings or when responding to a suspected or confirmed case of Covid-19.â
This canât be right. The Provision of Personal Protective Equipment Regulations 1992 says: âEvery employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective.â
So, if other steps are insufficient to eliminate the risk of infection, then PPE must be provided. What justification can there be for denying gloves to delivery drivers handling packages, or visors and face masks to those who have to work in confined spaces with other people (like shops, offices or schools), or have to mingle with other people (like ticket inspectors, such as the tragic case of Belly Mujinga)?
Last week, the ONS published figures showing an increased risk of death from Covid-19 among âlower-skilledâ occupations. So four-and-a-half times as many security guards died from coronavirus as in the rest of the population, taxi drivers, chauffeurs and chefs were three-and-a-half times more likely to die, bus and coach drivers over two-and-a-half times more likely to die, and sales and retail assistants twice as likely to die from it.
Far from their employers being advised not to provide PPE specifically against the risk to such workers, they should be advised that they are under a statutory duty to provide it. The point here is that our long established health and safety laws are being ignored.
Trade unions fought for statutory protection for at least 150 years. These laws are being trashed. So too are common-law obligations highlighted in legal advice to the NASUWT published last week.
Also last week, the HSE published its own guidance to a return to work. Although the HSE is an âarmâs lengthâ public body, its guidance on how to operate a âCovid-secureâ business would be risible were the matter not so grave.
The documents fail to mention any of the relevant regulations beyond advising employers to carry out a risk assessment. For the rest it merely advises that the employer âshould think aboutâ various matters of safety.
As workers were being pressured back to work last week with inadequate guarantees about their safety, Brexit negotiations were breaking down because the government was not prepared to accept âa level playing fieldâ with the EU on environmental and labour rights.
The Covid-19 crisis is providing us with an alarming insight of the kind of employment protection we are likely to see if the post-Brexit structures are to be created by a Tory administration.