This is a briefing for workplace activists on the differences between refusing unsafe work, as defined under health and safety legislation, and “industrial action”, under the terms of existing legislation including the anti-union legislation Free Our Unions fights to abolish. In legal terms, “refusing unsafe work” and “industrial action” are not the same thing!
The point of this briefing is not to suggest that the law is in some way “on our side”. Our campaign exists because we know the opposite is true! But it’s important to understand different legal categories, and what the law says about our rights. As ever, enforcing those rights is invariably a matter of the strength of collective organisation.
Employers may not lawfully cause any detriment to an employee who leaves a workplace that the worker reasonably believes poses a serious and imminent danger, or who takes steps to protect themselves or others. This is the relevant extract of the 1996 Employment Rights Act:
44. Health and safety cases.
(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that — …
(d) 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
(e) 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.
(2) For the purposes of subsection (1)(e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.
Section 100 of the same Act states that dismissing an employee for doing either of these things is unlawful unfair dismissal.
So, there you go. It’s clear. You have the right not to put yourself and others in danger. Your employer may not lawfully punish you for doing so.
(d) establishes your right to leave, propose to leave, and not return to, a workplace you reasonably believe to pose serious and imminent danger;
(e) establishes your right to take steps (which may include refusing to carry out a particular task) to protect yourself and others.
(Note that the Act affords this right only to “employees”. However, the EU Directive from which it stems refers to the wider category of people with “an employment relationship”, and the law also stipulates that agency workers have the same health and safety rights as employees.)
Leaving a dangerous workplace, or taking steps such as refusing to carry out unsafe work, is not industrial action. You do not have to be balloted or instructed by your union to do it. After all, the lengthy process involved in calling industrial action would entirely defeat the purpose of a law allowing you to protect yourself from an immediate hazard.
So long as unions and workers are sensible in how they act and communicate around this issue, they can avoid falling foul of laws about “unofficial industrial action” or “inducement”.
It is best to avoid referring to occasions where workers exercise these rights as “walkouts”, “wildcat strikes” or other terms that imply industrial action. It is also advisable to not confuse the two: do one or the other. If a union declares it is going to ballot for industrial action over a safety issue, then if workers subsequently exercise their right to refuse, the court may deem the union to have induced them to do it [Govia Thameslink vs Aslef, 2016]
But unions are legally allowed to give information and advice to members. Their right to do so is enshrined in the European Convention on Human Rights.
So, a trade union can tell its members that they have these legal rights, and how to use them. It could give examples of situations in which they can use these rights. It could tell them about the support that the union can offer to them when facing this situation.
We know that the courts are not the friends of workers. And yes, they have made some perverse decisions (such as the Aslef case referred to above). But so long as a union takes care over how it does so, there is no legal barrier to it advising its members of their rights and how to assert them.
More details on the legal intricacies here.