When is it right to stop the job?

Heigh ho, heigh ho. It’s off to work we go! According to Boris Johnson. But back in the real world, millions of people are fearful for their safety and reluctant to be herded back onto packed public transport to be delivered to unsafe and unregulated workplaces.

Media outlets would have us believe that it is militant trade unions preventing the cheery back-to-work scenario.

Yes, trade unions did resist Johnson’s snap, 12-hour back-to-work proposal, announced without consultation or accountability in his puffed-up address to the nation.

And trade unions continue to play a leading role in highlighting the dangers and the inadequacies of protections available to workers in too many of Britain’s workplaces.

And so they should. As recent reports from the Institute of Employment Rights (IER) have shown, neither Britain’s health and safety laws nor the regulatory bodies established to monitor and enforce those laws are fit for purpose.

It is true that legislation exists to protect those at work. A glimpse at the key health and safety statutory duties — each of which are legally enforceable and carry criminal charges if neglected — suggests that the laws should be enough to protect even the most vulnerable of workers.

But it’s a mirage. Just like the line in the Heigh Ho song that claims: “It ain’t no trick to get rich quick,” the idea that legislation will protect individuals is a con.

Consider the weaknesses in the laws. Much of the legislation only covers those classified as employees.

Those classified as “workers” or self-employed, are denied the protection of much of the legislation.

Similarly, some of the laws are only enforceable in workplaces where a trade union is recognised for collective bargaining purposes, where recognised health and safety reps can demand consultation and inspection rights.

For those without the benefit of a trade union behind them, workers are left to fall back on individual enforcement actions through tribunals or appeals to the regulatory body tasked with overseeing health and safety at work, the Health and Safety Executive (HSE).

Both are fundamentally flawed. Ignoring the fact that the employment tribunals are not currently sitting, even when they are, getting around the vague phrases of the laws is extremely difficult.

The median amount of compensation given is around £5,000 and the likelihood of getting your job back following unfair dismissal has been calculated as less than 1% of all successful cases.

As for relying on the HSE, figures in a recent report for IER by Steve Tombs suggest that the likelihood of one of Johnson’s proposed “HSE’s spot checks” happening is just once in every 275 years.

The latest figures show that there has been a 35% cut in the number of inspectors employed by HSE since 2010.

Speaking to the work and pensions committee in March 2020, the chair of the HSE himself described the number of inspections as “relatively small” — just 20,000 a year across 5.5 million HSE duty holders.

It is clear that following years of cuts the HSE is not in a position to provide adequate cover during this pandemic.

It’s true that the government has announced an additional £14m for the HSE, but that is a drop in the ocean when compared to the £104m cut from HSE funds since 2010.

And who will decide which sites to inspect with this new money? In 2011, the DWP declared whole sectors of the economy as “low-risk” and therefore exempt from proactive inspections.

Those low-risk sectors included some that most sane people would recognise as particularly high risk — including construction, one of the sectors the PM casually suggested should go back to work.

Little wonder that building work campaign groups are calling for construction sites to be shut down.

More could be said about the weaknesses of British laws — not least the changes introduced by the the Enterprise and Regulatory Reform Act, 2013 which revoked the 114-year-old civil liability of employers for their workers’ health and safety — making it exceptionally difficult to gain compensation for injury or death at work.

But readers will know all too well that the law is no friend of workers, despite occasional victories in the courts.

In reality, it is trade unions which offer the sword of justice in the workplace and it will be trade unions that protect the health and safety of workers as the government blunders through this pandemic.

Of course unions in Britain remain restricted by anti-trade union laws, laws that render strikes in response to immediate emergency situations unlawful by demands for ballots and notice periods.

But for the past 30 years, British laws have led more and more workers down the individual path to enforcement of rights.

How ironic it would be if individual workers now decided to walk off the job quoting statutory health and safety duties in their defence.

The law may be weak but it still engages a duty on employers and the State to prevent serious and imminent danger, not just to individual workers but also to their families and to the general public.

And, according to the HSE, a pandemic flu virus is a hazardous and dangerous substance.

We cannot allow trade unions to be cast as the wicked witch. Nor should workers accept the poison apple being offered by a reckless government playing fast and loose with the health and wellbeing of working people in return for a paltry pay packet.

A version of this article was originally published in the Morning Star