LRD Booklets October 2021

Health and Safety Law 2021

Introduction
[pages 9-13]

Introduction

This latest edition of the Labour Research Department’s annual guide to health and safety law is being published shortly after the government swept away legal restrictions and social distancing requirements aimed at preventing the spread of Covid-19 infection from 19 July 2021.

Gone too are the BEIS business department guidelines on making 14 different types of workplace “Covid-Secure”, which unions had an input into developing. These have been replaced by six new sets of Working safely during coronavirus (Covid-19): guidance, published by BEIS and the DCMS digital, culture, media and sport department (https://www.gov.uk/guidance/working-safely-during-covid-19) (see Chapter 1).

The TUC says the latest guidelines were published without proper consultation with unions or employers and described them as rushed through, inadequate, and a “recipe for chaos and rising infections”.

Business leaders were also unhappy with the long-awaited guidelines. Institute of Directors policy director, Dr Roger Barker, said they amounted to “a series of mixed messages and patchwork requirements” that would do little to dispel confusion.

Despite surging Covid infections, instead of mandating face coverings in crowded and enclosed spaces, this is now just expected and recommended — although Public Health England made clear its infection prevention and control guidance remains in place, requiring mask-wearing in health and care settings.

The government is no longer instructing people to work from home where they can. Instead it is expecting and recommending a gradual return to work over the summer. And from 16 August 2021, “double vaccinated” people and those aged under 18 no longer need to self-isolate if they are identified as a close contact of someone with Covid-19.

Despite the lifting of restrictions, Covid has not gone away. Announcing that the government would press ahead with Step 4 of its roadmap out of lockdown, prime minister Boris Johnson acknowledged this would result in more hospitalisations and deaths. By early August 2021, 130,320 people had died within 28 days of a positive Covid test, and 153,734 people had died with Covid on their death certificate.

According to Office for National Statistics figures an estimated 970,000 people were experiencing self-reported long Covid at 1 August 2021 — symptoms persisting for more than four weeks after the first suspected Covid infection that were not explained by something else. TUC research found nearly three in 10 workers with long Covid have experienced symptoms lasting longer than a year.

“All bets have been placed on the vaccination programme holding the line, but there is no guarantee that this will be a completely successful strategy,” said Unite general union national officer Colenzo Jarrett-Thorpe. “Our members have been fighting coronavirus for the last 17 months and they are exhausted. An increase in hospitalisations which will follow from 100,000 infections a day will add to their immense workloads — the pandemic has not ended.”

In July 2021, the People’s Covid Inquiry published its preliminary findings and concluded that the Tory government has been and continues to be unfit for the purpose of safeguarding the health of the nation.The inquiry, set up by the KONP anti-privatisation NHS campaign group, found the deaths of 150,000 people, most of whom “died needlessly”, were the result of incompetence.

It said the timings of lockdowns, and failures to put in place travel restrictions and quarantine, contributed significantly to accelerating the spread of Covid. It also found that the private test and trace system, which has cost a staggering £37 billion, has never worked.

“Underlying poor health and pre-existing inequalities left the UK vulnerable with England having the highest excess all-cause mortality rate among 23 European countries in the first five months of 2020,” it reported. It also warns that relying on a single strategy of vaccines, and the vaccine nationalism that goes with this, is undermining an effective pandemic policy in the UK and internationally, with variants allowed to spread.

The first post-Brexit edition

As well as being published in the middle of the ongoing Covid pandemic, this booklet is also the first post-Brexit edition of LRD’s Health and Safety Law. Now the UK has left the European Union (EU), unions fear the government will try to weaken health and safety standards.

The EU Withdrawal Act (EUWA) 2018 took effect when the transition period ended on 31 December 2020. It converted all EU-derived legislation and case law — including health and safety law — into national law, effectively freezing it as it stood at the end of December 2020.

The UK government is now free to decide which laws it wants to retain, repeal or amend, subject to the provisions of the UK-EU Trade and Cooperation Agreement (TCA). Labour law specialists have explained that the post-Brexit deal will not prevent the government “backsliding” on existing protections. Neither does it mean that all existing rights are safeguarded in their existing form or with the same level of protection. UK courts are no longer bound by the decisions of the European Court of Justice and some UK courts can now depart from retained EU case law (see Chapter 2).

In June 2021, Ian Duncan Smith’s Taskforce on Innovation, Growth and Regulatory Reform reported its recommendations to the prime minister “on how the UK can reshape its approach to regulation and seize new opportunities from Brexit with its newfound regulatory freedom”. Despite the lessons of the Grenfell Tower fire on the consequences of deregulation, its report recommends reimposing the “one in, two out” regulation duty on all government departments and refers back to the notorious Cameron era Red Tape Challenge to remove “unnecessary and burdensome legislation”.

The role of safety reps has never been more important

As workers return to workplaces after the latest national lockdowns and summer holidays, and schools, colleges and universities begin the new academic year, the role of the union movement’s 100,000 health and safety representatives has never been more important.

Unions and the TUC pushed for and won stronger guidance on what employers must do to make workplaces safe in the early days of the pandemic. They have campaigned nationally and locally for workers to be provided with suitable and sufficient personal protective equipment (PPE); ensured employers are conducting proper health and safety risk assessments and acting on the findings; called for more resources for the enforcement of health and safety standards; and won better protection for workers through legal challenges.

Working collectively to champion safe working practices, they have demonstrated clearly that union workplaces are safer workplaces, and over the course of the crisis, thousands of workers have joined a union for the first time. Between 2019 and 2020, trade union membership increased by over 100,000 and many union members have stepped up to take on safety rep positions.

Health and safety guidance for the pandemic and beyond

It is vital that safety reps have a good knowledge of health and safety law, including about their rights and employers’ obligations, to back them up as they take action to keep their members safe, whether they are returning to their workplace or working from home.

Health and Safety Law 2021 includes an updated chapter on working safely through the coronavirus pandemic. This highlights law and guidance relevant to tackling Covid-19 infection that is further explained in subsequent chapters dealing with particular areas of health and safety.

It covers all the latest developments in UK health and safety law including changes to statutory regulations, new case law, and guidance from the Health and Safety Executive (HSE), BEIS and DCMS and other official bodies, the TUC and individual unions. This includes the latest developments in, and union concerns about, health and safety law post-Brexit.

The booklet aims to provide safety reps and other trade union reps with a comprehensive guide to health and safety law and guidance as they work through the pandemic and beyond. It sets out the law using clear and practical language, explains the changes that have taken place since the last edition, and details any forthcoming changes in the year ahead.

The structure of this booklet

The booklet examines the Health and Safety at Work etc Act 1974 and the regulations made under the Act that deal with specific areas of health and safety. It covers:

• the law and guidance on working safely during the coronavirus pandemic (Chapter 1);

• the basic structure of health and safety law (Chapter 2);

• health and safety enforcement (Chapter 3);

• the management of health and safety at work including risk assessments (Chapter 4);

• safety representatives and safety committees (Chapter 5);

• the workplace, the working environment, and working from home (Chapter 6);

• hazardous substances (Chapter 7);

• work equipment and clothing (Chapter 8);

• physical hazards, including manual handling and repetitive tasks, fire, noise, vibration, radiation, electricity and gas (Chapter 9);

• working time (Chapter 10);

• the reporting of accidents and ill health (Chapter 11) and

• stress, bullying, harassment and violence (also called psychosocial risks) (Chapter 12).

Sources

The Acts and regulations referred to in this booklet can all be found on the Legislation UK website at: www.legislation.gov.uk.

Approved Codes of Practice (ACOPs) and guidance on regulations are published by the Health and Safety Executive (HSE) and can be downloaded free of charge from its website.

This booklet also provides examples from legal claims, known as “case law”. In each instance the case reference is given, consisting of the name of the individual or body making the application to the Court and the individual or body against whom it is being made.

For example, Allison v London Underground Ltd [2008] IRLR 440, tells you that the applicant was called Allison, the case was brought against London Underground Ltd and the judgment was reported in the law reports for 2008. The letters IRLR stand for the publication it was reported in, Industrial Relations Law Reports, and the number 440 indicates that the case was reported on page 440.

Important court cases and employment tribunal decisions are referenced wherever possible, either as they appeared in the press, or by the Court or tribunal reference number.