The risky job of a union safety rep

In the firing line
[Hazards 89, January-March 2005]

In the UK we have kinda, sorta rights. The sort of rights that mean you can refuse dangerous work, but you risk being fired for your trouble. Where you have a right to speak up but where your boss could still turf you out. And anti-union laws and union busting firms are now making life at work more dangerous still. Hazards editor Rory O'Neill calls for an end to this heath and safety "protection" racket.

BLIND JUSTICE Hundreds of workers each year say they have been fired for speaking out on safety. But winning an unfair dismissal case at employment tribunal doesn’t give them their jobs back.

Say no to unsafe jobs?

When print and paper union Amicus-GPM produced a "Say no to unsafe jobs" poster, reps in the paper industry clamoured for copies.

"The posters were part of a campaign in the paper industry giving members the right to refuse dangerous work," explains Amicus-GPM health and safety officer Bud Hudspith. "The agreement had a lot of support from employers. Some even produced their own version adding the company name and logo."

Although the union-industry agreement allowed disputed claims to be kicked upstairs, theoretically ending up with top managers and at the union HQ if unresolved, "in reality, every time there was a problem, the dangerous work was either stopped or put right."

The agreement, though, was only with paper industry employers. "People in other sectors started to see the poster and wanted them," says Hudspith. "But in the paper industry we had an agreement so you could refuse dangerous work and not be fired. In other areas you haven't got that protection."

Your money or your life

A legally-condoned choice of "risk your job or risk your life" would be unthinkable in some countries. In Canada, public sector union CUPE even issues pocket cards telling all its members "you can refuse unsafe work" (see below).
It's the law.

In Britain, we are not just lagging on the right to refuse. Canadian unions talk about "the three Rs" - the Right to Refuse, the Right to Participate and the Right to Know.

Here, there is no real right to refuse, because try it and you could end up fired and no law in the land can require that you are reinstated. The right to participate is also there in theory, but in reality employers don't even have to respond to the issues raised by safety reps. And there is no real comprehensive right to know - despite the rights to information safety reps enjoy in law, ask too many awkward questions and you can still be victimised out of your job.

Firing a worker for raising health and safety concerns needn’t be expensive. On 1 February 2005, the government announced the minimum award for unfair dismissal on safety grounds had been raised to £3,800. Dismissing a worker raising safety questionmarks could still be a much cheaper option for an irresponsible employer than introducing necessary safety improvements.

In the five years since 1999/2000, over 1,500 workers have claimed formally they were fired on safety grounds. In the three years from 2001/02 to 2003/04, the most recent year for which figures are available, over 500 workers have settled safety related unfair dismissal cases either at the conciliation service ACAS or successfully at an employment tribunal. Only about twenty per cent of safety cases are dismissed once they reach an employment tribunal hearing.

Fired for safety's sake

Even in organised workplaces union reps can lose their jobs for raising safety concerns. The employer may lose the employment tribunal but the worker will have still lost their job.

• Train driver and RMT rep Sarah Friday was found to have been fired for raising health and safety issues and awarded £16,000 at an employment tribunal.

• UCATT safety rep Dave Smith was found to have been unfairly dismissed by construction giant Costain after raising safety concerns. The judgment was overturned by an Employment Appeals Tribunal because Smith was not a Costain employee, but agency labour.

• Former train driver Laurie Holden won his case for unfair dismissal after speaking out about breaches of safety at the rail operator Connex. Holden, who had been an ASLEF safety rep, was awarded a total of £55,000, including £18,000 in aggravated damages and injury to his feelings.

A 2003 analysis by whistleblowers' charity Public Concern at Work found the top two issues dealt with by its helpline, which received 561 calls in the preceding year, were safety risks and financial misconduct - each making up 30 per cent of calls.

A report the same year found NHS staff were frightened to raise concerns, particularly about unsafe staffing levels, government targets and waiting lists, risks caused by other staff and a bullying culture. The survey of more than 2,000 health workers, carried out by PCAW on behalf of UNISON, found one-third suffered reprisals for speaking out.

RAILROADED RMT safety rep Sarah Friday (right) won her unfair dismissal employment tribunal – but still lost her job on South West Trains. “All I asked for was proper risk assessments to protect the health of our drivers and the travelling public,” she said. “It is not just an attack on me, but on the right of all safety reps to have any safety on safety at work.”

Getting worse for workers

Unions can offer essential protection - for both your job and your safety. The Amicus-GPM agreement with the paper industry gave union members the right to refuse dangerous work without fear of being fired.

In 2004 rail union RMT settled a case with London Underground over the refusal of staff to work on the grounds of "serious and imminent danger". Fifteen RMT members had had wages deducted after refusing to work during the firefighters' dispute, arguing there was inadequate fire safety cover to protect staff and the public. The union took the case to an employment tribunal. Settlement was reached and the tube workers' pay reinstated.

However, even existing rights to refuse dangerous work - already undermined by the lack of protection from the sack - are being eroded. In January 2005, the High Court backed rail company Midland Mainline's claim that an RMT ballot for action was "tainted" under anti-union legislation because guards had been refusing, on safety grounds, to operate the trains.

And Amicus has argued that companies are increasingly turning to union busting firms to block union recognition bids. In the US, where union busting is a multi-billion dollar industry, the top union busting firms warn companies to clampdown at the first sniff of any disquiet over health and safety.

Failing the legal test

A legal system that tolerates union busting and uses anti-union laws against workers with legitimate health and safety concerns would seem to be failing to meet basic standards of morality - the right to refuse to dangerous work is not a particularly extravagant desire. It is also subverting existing UK safety law.

The Employment Rights Act 1996 says a person should not suffer detriment or be dismissed or made redundant for reasons including:

• carrying out their legal functions as safety rep.

• raising health and safety concerns or participating in safety consultations with an employer

• leaving or refusing to return to work in circumstances of serious and imminent danger" or taking steps to protect themselves or others in those circumstances.

Section 44 of the act says "an employee has the right not to be subjected to any detriment…

"in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or…

"in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger."

Section 100 says to fire someone for taking this action should automatically constitute "unfair" dismissal.

Whistleblower and trade union laws also confer protection on those raising safety concerns.

Fired illegally - but what can you do?

The RMT reps at Midland Mainline would have been within their rights to walk off the job without a ballot, as they say they genuinely perceived "serious and imminent danger."

While the law recognises it is wrong to dismiss someone for acting on genuine safety concerns, it offers no means to stop it. Even balloting the members to see if there is a workforce agreement on the presence of a "serious and imminent danger" seems to confer fewer legal protections than the employer enjoys when using anti-union laws to frustrate industrial action on a safety issue.

Basic international labour rights include the right for workers to "remove" themselves where they have a "reasonable justification of "imminent and serious danger." ILO's occupational health and safety convention, Convention 155, calls for "the protection of workers and their representatives from disciplinary measures as a result of actions properly taken by them".

Article 13 says: "A worker who has removed himself from a work situation which he has reasonable justification to believe presents an imminent and serious danger to his life or health shall be protected from undue consequences in accordance with national conditions and practice."

A protocol to the convention to take effect in 2005 says employers must "refrain from instituting retaliatory or disciplinary measures against a worker for reporting an occupational accident, occupational disease, dangerous occurrence, commuting accident or suspected case of occupational disease."

Britain, though, has not ratified this ILO convention on minimum health and safety rights.

UK law on safety victimisation • ILO safety convention

UK backwards on rights

While the Health and Safety Commission is at pains to spell out the positive effect of union safety reps, it is equally resolute when it comes to opposing new rights.

Rural union TGWU ran the first pilot "roving reps" pilot scheme in 1995, judged a success in an HSE evaluation (Hazards 61). But instead of a national network of roving reps with rights, a decade on we have 28 "worker safety advisers" nationwide, relying on the goodwill of a handful of employers to enter any workplaces at all.

By contrast Sweden has had a system of regional reps since 1974. About 1,500 are now operating nationwide in a country a sixth the size of Britain. Norway has roving reps in construction; Italy, in a number of industrial sectors.

In December 2004, unions in the Australian state of Victoria welcomed a new safety law that allows union officials - "authorised representatives of registered employee organisations" - the right to make surprise inspections of even non-unionised work sites, bringing Victoria in line with other Australian states.

Leigh Hubbard, secretary of Victoria's top union body VTHC, said: "The legislation gives unions and workers more ability to stop dangerous work." He dismissed employer complaints about the new right of entry as "pure hysteria," adding: "Rather than complaining about the right of entry provisions they should welcome them as another mechanism to ensure safer workplaces."

Back in the UK

It is not only unions that say enhanced union safety rights should be introduced here. The all-party Work and Pensions Select Committee in July 2004 concluded: "Given the HSE's limited resources, if safety representatives were empowered to enforce health and safety law in the workplace, we believe this would have a powerful effect in improving standards." It added: "We also believe this power to take action, should include not just criminal prosecutions but also improvement and prohibition notices, subject to the usual right of appeal to the Employment Tribunal" (Hazards 86).

The recommendations weredismissed by the government in an October 2004 response. Health and Safety Commission (HSC) chair Bill Callaghan rejected any new safety reps' rights out of hand without waiting to hear the government response or even discuss the issue at HSC.

TUC said the biggest disappointment was the government rejection of new safety reps' rights and greater worker consultation, measures TUC said would cost nothing but would lead to reductions in injuries and ill-health at work.

Unions had been given reason to hope for new rights. The government had promised a safety bill, with employee rights and consultation as central themes. However, in November 2003 HSC abandoned plans for bill, the first sign of a swing in policy away from worker-friendly and toward business-friendly (Hazards 86).

There is a more fundamental problem. The rights union safety reps have now - rights to training, information, consultation - are routinely disregarded by employers. Yet TUC says it does not know of a single case where an employer has been prosecuted for failing to consult (Hazards 88). And unions report that even getting time off for basic safety rep training is proving difficult (Hazards 86).

"In practice, it's a battle to get time off for training, inspections and to exercise existing rights," says Amicus-GPM's Bud Hudspith. "At a time when safety reps' proven role should have earned new rights, we are seeing long held rights eroded by stealth."

Resources

Hazards website

- Safety reps' rights
- Roving reps
- Safety rep training
- Provisional Improvement Notices
- Union safety effect

UK law on protection from victimisation

- Hazards victimisation webpages
- Employment Rights Act 1996, section 44 , Rights not to suffer detriment, health and safety cases
- Employment Rights Act 1996, section 100, Right not to be unfairly dismissed on safety grounds

International Labour Organisation

- Convention concerning Occupational Safety and Health and the Working Environment, 1981, Convention:C155
- P155 Protocol of 2002 to the Occupational Safety and Health Convention, 1981

Tower Hamlets UNISON news release, 2 March 2005

"Heartless" Council Bosses attacks Trade Union
Health & Safety Reps

Hopping mad trade union members donned Australian convict outfits and chained themselves together outside the town hall to protest against Tower Hamlets Council's "Kangaroo Courts".

The protest was held to support Unison Assistant Branch Secretary John Gray who was disciplined for representing a local Parking warden steward, Kevin Travers. Kevin was fined a day's pay for cancelling an appointment with the council's occupational health section after he had been badly injured by a motorist who was trying to evade a parking ticket. Kevin could have been killed in this "drive away" incident. Parking wardens are also amongst the lowest paid workers in the Council.

The Union has argued that the Council was victimising Kevin and that the fine as well as being "heartless" was actually unlawful. John is accused of shouting at personnel officer and a manager during a meeting over Kevin's pay deduction.

But Unison members believe that the Council is only taking action against John because days before he had served a Union Inspection Notice on Tower Hamlets CEO Christine Gilbert. Unison believes that this bogus discipline investigation is directly related to John's legitimate activities in his role as Unison's Joint Health & Safety Officer.

On Wednesday morning (2 March 2005) five activists chained themselves together and campaigned outside the Town Hall during John's discipline Appeal. Unison safety rep Montrose Matty called for the Council "to see sense and stop victimising union activists such as John who only want to stop people being made sick at work…attack the bullies at work not our defenders". As expected John's Appeal failed, both Kevin and John have submitted employment tribunal cases.

Unison Chair John McLoughlin says, "While we support the right of anyone to make a complaint and have it investigated, this smacks of victimisation. The Council's own procedures state that mediation should be tried first before even commencing a disciplinary investigation. We are suspicious that senior management have seized the opportunity to attack an effective union official."

Tower Hamlets UNISON Office, 1st Floor, 41/47 Bow Road
London, E3 2BS.

Tel: 020 7364 5413. Fax: 020 7364 5033.
E-mail: towerhamlets@unisonplus.net

Letter from Hazards in support of victimised Tower Hamlets union reps, 1 March 2005

FAO: Christine Gilbert - Chief Executive Officer, Tower Hamlets Council

Dear Christine Gilbert

Discipline appeal, John Gray, UNISON Assistant Branch Secretary, Joint Health and Safety Officer

I am gravely concerned at the ongoing disciplinary action against John Gray, UNISON Assistant Branch Secretary and Joint Health and Safety Officer. In the interests of health and safety and adherence with good practice and the law, I would urge you to abandon this damaging procedure.

I hope those responsible for pursuing this action are fully aware of the legal position. Under the Employment Rights Act it is illegal to victimise a trade union representative undertaking their safety duties or raising safety concerns with the employer. They must not “suffer detriment” as a result of raising health and safety concerns or participating in safety consultations with an employer.

Representing a member on occupational health related issues falls within the scope of this provision. Beyond that, taking action against someone performing a legitimate union and safety function is not just illegal, it is exceptionally poor health and safety practice. It does not encourage a spirit of cooperation on health and safety issues or constructive dialogue. You may or may not be aware of the considerable literature showing informed and active union participation is the single most effective way to improve health and safety practices at work.

I would also suggest strongly that you review your occupational health policy and procedures. It is exceptionally poor practice to take punitive measures against a worker suffering work-related ill-health. I suggest you give some urgent consideration to the guidance in the Health and Safety Executive’s new publication, ‘Managing sickness absence and return to work’. The guide says an effective rehabilitation policy should not only be supportive of the worker but should “ensure that employees experiencing ill-health, injury or disability will be treated fairly, equally and consistently.”

Compounding the physical and mental trauma of work-related ill-health with punitive disciplinary measures does not strike me as either supportive or fair. A thorough investigation of the circumstances that led to the worker requiring occupational health support would be a more effective and positive use of public resources.

I would strongly encourage you to abandon the disciplinary action against John Gray and to review urgently your disciplinary, sickness absence and rehabilitation procedures to ensure they are operating to the required legal standards. This case raises serious questions about the Council’s commitment to constructive dialogue with the workforce, to health and safety and to decent treatment for those injured delivering services to the public.

Yours sincerely

Rory O’Neill

- Hazards magazine www.hazards.org
- TUC Risks www.tuc.org.uk/risks
- TUC Changing Times www.tuc.org.uk/changingtimes
- Health, safety and environment officer, International Federation of Journalists
- Senior researcher, occupational safety and health, Stirling University
- International Confederation of Free Trade Unions (ICFTU) occupational health and safety working party

cc. Tower Hamlets UNISON