A PCS Independent Left activist discusses the work being done to pressure the Health and Safety Executive (HSE) in relation to the COVID-19 crisis.
Should HSE be using the Health and Safety at Work Act (HSWA) to enforce on COVID-19 risks in the workplace?
YES, we believe it should.
In 2003 HSE published guidance on controlling the risks of infection at work, which can be found here. Specifically, at paragraph 6 the document states:
‘Although your employees may well pick up infections from workmates (just as they might from their friends and family outside work) – these infections are not your responsibility under health and safety law. This is because the infection is just as likely to be caught outside the workplace as in it.’
This guidance was written for circumstances where government had not imposed restrictions on movement.
The current government restrictions on movement of individuals mean that when followed the infection is now less likely to be caught outside the workplace. That is the whole point of the new restrictions.
HSWA provides for enforcement on the basis of exposure to risk, not on the basis of any actual harm, or any causal link between the risk and the harm. This is particularly true when pursuing health related risks such as infections, legionella or hand arm vibration.
HSE enforces in cases where a risk is not created by the workplace, but where the nature of the workplace increases the risk of exposure. For instance, exposure to sunlight for workers in the construction and agricultural sectors where the conduct of the business means workers have to work outside. In this current situation, it is the way that the employer organises the work that creates the risk: lack of provision of hand washing facilities that are adequate for this situation, inadequate cleaning regimes, and poor arrangements for travel to sites, use of changing rooms and mess facilities to allow distancing. Where that risk can be managed, we can have no objection from a HSWA perspective, and whether the undertaking is essential or not is a public health matter.
There has been a lot of external noise on this issue from politicians, journalists and trade unions, including a letter to the HSE from the STUC.
PCS HSE National branch along with Prospect and FDA have tried to discuss this with HSE. A joint letter sent from all three unions to HSE on 25 March 2020 and a further letter was sent 30 March 2020.
Attending workplaces increases the risk of exposure to COVID-19, especially whilst workers in non-essential industry continue to be forced to use crowded public transport and then work at close proximity on building sites, in factories and in call centres.
That brings the risk of COVID-19 in the workplace legitimately within scope of HSWA and HSE’s enforcement remit and PCS must keep pushing for action.