POA Circulars

42 | 16.04.2014

Safe Secure and Decent

It has been brought to the National Executive Committee’s attention that POA members are unsure as to the legislation on what to do when faced with unsafe working conditions or practices.

The introduction of Benchmarking has not removed the requirement for employers (NOMS) to provide a safe working environment. Benchmarking has introduced staffing profiles and regimes which deliver efficiency savings across the Estate. Each establishment “must” have in place safe systems of work and risk assessments to minimise all hazards in the workplace, this includes assaults or acts of violence. The Governor must also put in place contingency plans to support the workers within Prisons. Should any Prison have a serious act of indiscipline, or members of staff be assaulted or the subject of an act of violence, risk assessments and safe systems of work must be reviewed and endorsed to ensure our workplaces are safe and legislation complied with.

Employment Rights Act Section 44 Health and Safety Cases

The following is a direct lift from the legislation.

Section 44 of the Employment Rights Act deals with the options open to workers to protect their health and safety without detriment.

Within this section it allows workers to take reasonable steps to prevent them from endangering their health and safety in particular:

(c) being an employee at a place where—

(i) there was no such representative or safety committee, or

(ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,

(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.


We consider that the action set out in paragraph (d) should only be used when the steps in paragraph (e) have been tried and failed to work i.e. all reasonable methods have been tried to minimise the danger before removing yourself from the place of work.

For example, if you normally have 5 Officers and an SO on a unit/wing to conduct the normal routine, this must be supported by suitable and sufficient risk assessments, safe systems of work and contingency plans which have been the subject of consultation.

If for any reason the number of staff available is reduced then the regime/routine must be amended to reflect this change and these must be part of the suitable and sufficient risk assessment and safe systems of work. If for any reason there has been intelligence to alert staff to recent acts of violence, indiscipline or any other issues which could put our members in imminent danger, management must take appropriate steps to minimise the risk to all employees and prisoners in their charge. Therefore, if individuals become aware of any potential threat it is their responsibility to inform their line manager in the first instance (this should normally be in writing) who in turn should inform the Governor, who then must put in reasonable adjustments to ensure the health and safety of his/her employees and prisoners in his/her charge.

If members do not believe reasonable action has been taken to protect their health and safety and that of their fellow workers, they must bring this to the attention of the POA Health and Safety Representative/Committee.

Responsibility of the Health and Safety Rep and/or Committee

Upon receipt of legitimate concerns of members in respect of their safety, staffing and delivery of regime or intelligence, which could or may lead to members health and safety being put at risk, the Safety Representative/Committee at the earliest opportunity, must investigate the concerns and challenge management over their actions/failings in their duty of care to staff and prisoners under the Health and Safety at Work Act 1974.

If evidence supports the legitimate concerns of members, urgent discussions with management must be sought to bring about a safe and sensible solution.

The POA and NOMS are committed to positive engagement and ensuring that all workplaces are safe secure and decent.

The Employment Rights Act Section 44 Health and Safety Cases states under

(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.

(3)An employee is not to be regarded as having been subjected to any detriment on the ground specified in subsection (1) (e) if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have treated him as the employer did.

Evidence

In order to justify any action by members to ensure they do not suffer a detriment due to their actions, the POA Committee and the Health and Safety Representative must ensure that all concerns have been fully documented, management informed and consultation where appropriate has occurred to seek a sensible and safe resolution.

This does not prevent any individual from taking reasonable action to protect their health and safety, or that of their fellow workers or prisoners in their charge such they be in serious or imminent danger.

Health and Safety is primary legislation and must be adhered to by employers and employees alike, this circular is not a substitute for the legislation, but an aide memoir to members who are working in environments which are becoming ever increasingly dangerous and violent.

The NEC continue to work with NOMS and the BDG to bring about changes which are safe and secure. However, it is vital that local committees and Health and Safety Representatives ensure that suitable and sufficient risk assessments, safe systems of work and contingency plans are in place to support any regime, which is required by the employer to ensure the safety of our members whilst at work.

Thanking you in anticipation of your support and co-operation, please draw the content of this circular to all our members attention.

Yours sincerely

 


STEVE GILLAN

General Secretary