Who’s Afraid of Section 44?

Throughout the coronavirus crisis the government has refused to inform workers of their legal right to walk out of unsafe workplaces – once again, it has fallen to trade unions to protect workers when nobody else will.

Now that a mass return to work in workplaces is underway in England, it is astounding that that not a single government minister has sought to inform workers of the existence of Section 44 of the Employment Relations Act 1996.

Last Sunday, in his address to the nation, the Prime Minister had the opportunity to do so. So do those heading up the daily government briefings. Yet none of them have seen fit to inform workers of their rights. It is equally astounding that no government in the devolved nations has done it since the start of the coronavirus crisis.

So, what is Section 44? And, are the walls of governmental silence due to cock-up or conspiracy – or a bit of both?

In essence, Section 44 provides employees with the means to contest the adequacy and/or suitability of safety arrangements at work without fear of recriminations (such as getting sacked) or suffering detriment (such as loss of wages). It provides employees with the ‘right’ to withdraw from and to refuse to return to a workplace that is unsafe and to do so on full pay.

Employees are entitled to remain away from the workplace if they believe the prevailing circumstances represent a manifest risk of serious and imminent danger which they could not be expected to avert. Section 44 entitles employees to claim for constructive dismissal and (unlimited) compensation in the event that an employer fails to maintain safe working conditions.

This means workers do not have to be reliant upon employer goodwill or foresight. It also means that workers do not have to rely upon calling in an inspector from the Health and Safety Executive (HSE) to conduct a check in their workplace – which would be a very long wait because the HSE is extremely under-resourced.

Given that we hear so much about ‘staying safe’ and now ‘staying alert,’ why is it that this right under law has been ignored by those that are making public policy? 

Ignorance may play a part. Section 44 is not particularly well-known; those in government might have been included among the ranks of those who were largely unaware of its existence. But they have legions of specialist staffs and advisors – including the HSE – so if there is a case for ignorance amongst ministers, it must be increasingly seen as wilful.

That brings us to the question, did they deliberately avoid talking about it? The failure to publicise Section 44 must at least in some party be due to the unwillingness of the governments to encourage walkouts by workers, whether individually or collectively, and which could, in their preferred choice of terms, ‘disrupt the economy’ – code for profits and profitability.

By publicising its existence, governments would be granting legitimacy to the many walkouts which have already taken place across Britain. The HSE has also long ago decided that it is not its responsibility to inform the public about Section 44. And while not all employers are malevolent and malicious, human resource and personnel managers are also conspicuous by their silence when it comes to promoting awareness of Section 44.

So, who is publicising Section 44’s existence and encouraging its application and use? Tribune has done it. There are independent sources, like the Section 44 website. Some newspapers, such as the Guardian and Morning Star, have over the last week mentioned Section 44’s existence in their news reporting. Others like the Independent and Labourlist have published ‘explainer’ pieces about Section 44. The Daily Mail, by contrast, only mentioned Section 44 in a piece attacking the unions for publicising its existence and giving instruction to their members about how to use it. 

In their attacks, the Daily Mail paid a back-handed tribute to the various unions and Trades Union Congress (TUC) because they are the only mass organisations – with around 5.5 million members – that are seeking to let workers know about Section 44. And while the unions and the TUC play a wider role in protecting all workers, with only 23% membership amongst the workforce in Britain, they do have a huge struggle on their hands to do so. Moreover, membership is very low in some sectors of the economy and less than 5% among the youngest workers.

Trade unions trying literally in many cases to save workers lives face an enormous uphill struggle. This brings us back to the role of the government. Despite steps like the Job Retention Scheme, it remains ideologically wedded to business interests. When push comes to shove, it would prefer not to use the state to ameliorate the failings of the ‘free market.’ Telling workers about their rights at work, forget even encouraging them to use them, is definitely not part of their ideology.

But governments can be forced to act. This is where the Labour Party has a huge potential role. Labour’s new leader, Keir Starmer, should be taking the opportunity to specifically publicise Section 44 – and to harangue the government to publicise it and encourage its use. While broadly backing unions’ concerns about the return to work, Starmer has been to reticent to address the immediate concerns about protecting workers’ lives in the here and now. He should do so without delay.