Health and Safety
Executive / Commission
Local authority circulars
To: Directors of Environmental Health/ Chief Environmental Health Officers of London, Metropolitan, District and Unitary Authorities and Chief Executives of County Councils.
For the attention of: Environmental Services / Trading Standards / Fire Authorities / Other
This circular gives advice to local authority enforcement officers
1 Interruptions in normal working caused by industrial action may result in increased risk to employees and to others who are protected by the HSW Act, since a reduction in staffing cover may adversely affect the employer's organisation and arrangements for health and safety. The operation of the Health and Safety at Work Act is not suspended during a period of industrial action and employers continue to owe a duty under section 2 of any employees remaining "at work" (as defined by section 52), and under section 3 and 4 to other persons.
2 Although the general duties under sections 2 - 4 to ensure health and safety "so far as is reasonably practicable' remain unchanged during the industrial action, what is deemed "reasonably practicable" will depend upon the circumstances and may require a response from the employer different from that which would be expected in normal circumstances. This circular discusses some of the relevant considerations in broad terms and offers general advice.
3 The employer will have no duty under section 2 if his employees are not "at work". However, he continues to have a duty under section 3 for as long as he continues to "conduct an undertaking", and it will be necessary to consider whether any aspect of the undertaking is liable to give rise to risk. Where premises are unattended because of a strike the steps that the employer should take to comply with his duty under section 3 are likely to be similar to those taken at other times when the premises are unattended, to ensure that plant and processes are left in a safe condition and uninvited entry by the public prevented. It may be necessary for the employer to come to an arrangement with employee representatives so that essential safety measures are carried out before strike action takes effect.
4 In cases where some employees continue to work during a strike or where industrial action is taken short of a strike, and the employees remain "at work", ie in the course of their employment, they continue to enjoy the protection of section 2. In such situations, risks to employees or non-employees may arise from inadequate supervision, or failure to carry out essential maintenance or safety procedures. Where members of the public visit or are resident on the premises, reductions in effective staffing cover may result in an increased risk of assault on employees, for example where cash is handled and in secure institutions. Again it may be necessary for employers to discuss these matters with representatives of the workforce.
5 In cases where workers stage a "sit-in", for example in response to redundancy notices, they are not "at work" and so are not covered by section 2. Nor does section 2 apply to workers who are sitting in and continue to work during an occupation, since work carried out in such circumstances would, in general, be outside their contract of employment and they would not be in the course of their employment. Where redundancy notices have been served and dismissals have taken effect, the workers concerned are clearly covered by section 3. Where this stage has not yet been reached there is an element of doubt; since section 3 places a duty on employers towards persons who are not "in their employment", the question arises whether employees are protected by section 3 while they are not at work. It is probable on balance that the courts would hold that section 3 does apply in such cases. In giving advice on precautions inspectors will, in any case, be concerned with evidence of risk rather than doubt about the position in strictly legal terms.
6 The measures that an employer should take to comply with his duties under the Act during times of industrial action depend on the precise circumstances. The test of "reasonable practicability", involving an assessment of the degree of the foreseeable risk and sacrifice involved in eliminating the risk, will still apply. If the employer is prevented by industries' action from maintaining his normal organisation and arrangements for safety he may need to take alternative measures to comply with his duties under the Act. In some cases of industrial action short of a strike, it may be necessary to reduce or halt certain processes, if the risks involved in continuing them in the face of industrial disruption are considered unacceptable, and in extreme cases it -nay be necessary to close premises. In most cases however, it should be possible for the employer to ensure the maintenance of adequate safety standards, with the co-operation of the workforce or otherwise.
7 Special measures may be necessary to compensate for the absence of functional or line management, for example in the case of "sit-ins" when management is refused access. It may be sufficient to inform the workers of any hazards of which they are not already aware and of the precautions that should be taken. It may be necessary to negotiate access for an individual manager or other person capable of remedying a particular hazard. In rare cases, where measures of this sort are inadequate or cannot be implemented and where it is vital on safety grounds to regain access or to evacuate premises, it may be necessary for the employer to resort to the legal process or to approach the emergency services for assistance, depending on the nature and imminence of the hazard.
8 As long as there are employees who continue to be "at work", even if working to rule during a period of industrial action, such employees have a duty under section 7 of the Act to take care of their health and safety, and the health and safety of their colleagues, and to co-operate to the extent necessary to enable the employer to comply with his duties under the Act. This could include maintaining or co-operating in the maintenance of safety equipment such as breathing apparatus or fire fighting equipment, since neglect of these could result in danger to employees or to the emergency services. In most cases it should be possible for the employer to secure adequate co-operation in safety matters, so that it will rarely be necessary for inspectors to consider enforcement action under section 7.
9 No duty under section 7 can arise when an employee is not "at work", for example when he is on strike. However, he continues to have duties under section 7 up to the time that he ceases to be "at work", so that, for example, an operator of dangerous machinery could be in breach of section 7 if he goes on strike without taking reasonable measures to ensure that the machinery can be safely left unattended. He could not, however, be held responsible for hazards arising from lack of attention during the time he is on strike, since this would be considered to be the employer's responsibility.
10 It should be noted that under section 8, not intentionally or recklessly to interfere with or misuse anything provided in the interest of health, safety or welfare, is placed on all persons regardless of their employment status.
11 Enforcement officers should avoid being drawn into industrial disputes. It is vital that enforcement officers should be seen to be concerned solely about health and safety matters and should not appear to be partisan as between the parties to a dispute. The role of the Advisory, Conciliation and Arbitration Service (ACAS) should be drawn to the attention of the parties wherever appropriate.
12 Discretion should be exercised concerning the carrying out of visits to premises which are the subject of an industrial dispute. Where a visit is necessary, the parties should be informed and the co-operation sought. The changed circumstances brought about by the industrial action should be taken into account, as outlined in the above paragraphs, before enforcement action is contemplated. Where hazards are observed it may on occasion be necessary for enforcement officers to give information to employees or other persons who may be exposed to risk. In such cases enforcement officers should give the same information to the employer, whether or not they are compelled by the terms of section 28(8) to do so.
13 If there is any doubt about the advice that should be given or the action that should be taken in any particular case, the matter should be referred to the ELO for consideration.