LEGAL: EXPLAINING THE POA/HMPPS HEALTH AND SAFETY PROTOCOL

Iain Birrell, a trade union law expert at Thompsons Solicitors, outlines the Health and Safety Protocol and why it is vital for POA members

The Health and Safety Protocol is more than it might seem at first glance. Yes, it is about protecting your health and safety at work, but it is also directly linked to the ban on industrial action and the permanent injunction. It is also something of a unicorn in the world of industrial relations – a collective agreement that can be legally enforced against the employer, if necessary. It is an important document, and every POA member should be aware of it. 

Section 127 of the Criminal Justice and Public Order Act 1994 makes it illegal for the POA to call upon its members to take industrial action. As if that wasn’t bad enough, in 2017, the High Court made a permanent injunction underlining that, which meant that any breach of it would be a contempt of court. In 2019, the POA was found to be in contempt of court, fined £210,000, and warned that had the Secretary of State for Justice applied for it, the judge had been prepared to impose a custodial sentence to reflect how seriously it took the contempt. 

One of the events which prompted the case directly overlaps with the situation that prompted the Health and Safety Protocol. On 21 February 2019, members walked out of HMP Liverpool, citing fear for their personal safety arising from staff shortages and conditions within the prison. Although the judges accepted the General Secretary’s evidence that the POA had not engineered that, they nevertheless felt that industrial action and contempt had occurred. 

Blurring the line between action taken for health and safety reasons and industrial action is intolerable. It makes raising genuine concerns in the face of management intransigence hazardous for POA and members alike. Prison staff must be free to raise these concerns without the fear that doing so risks another contempt of court application. This is why the Health and Safety Protocol came about. The Protocol was agreed upon within days of the contempt hearing, so it came too late. However, it is hoped that it will provide the necessary certainty in the future. For reasons I hope are now apparent, POA members must be aware of it and follow it to the letter; copies can be obtained from your Executive Council member or POA’s website as part of Circular 121/2019. 

The Protocol is in four parts. Part one sets out management’s role. It acknowledges the employer’s right to manage and its obligation to provide a safe workplace. It also confirms that health and safety concerns should be raised with line managers first. 

Part two provides a standard advice which, if POA uses it, will not be viewed as breaching either section 127 or the permanent injunction. It summarises the law and sets out the procedure to be followed for ‘routine’ health and safety concerns. It guarantees that HMPPS will meet in good faith with POA to resolve any health and safety concerns that members raise with the union. The point of entry for your concerns is your local branch committee. So that there is no doubt about it, this section clarifies that it is up to the individual member to decide what to do at that point and that POA will not advise on any course of action. Part three deals with urgent health and safety concerns. It sets out a legally enforceable mechanism for quickly escalating and addressing those concerns in good faith, accounting for them in any resolution plan, and granting facilities and facility time to the representatives participating in those talks. 

Part four reinforces the need for decision-making and policywriting to properly account for all the obligations HMPPS owe you under the health and safety legislation. It also guarantees that no breach of section 127 will be alleged if the Protocol is followed. 

The Protocol is one of those essential documents to be familiar with before you need to rely on it in a crisis. I urge all members to read this critical safeguard since it protects you and your union. 

For information on how Thompsons Solicitors can help you, visit the POA hub today. 

 

IAIN BIRRELL 
THOMPSONS SOLICITORS

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Representing over 30,000 Prison, Correctional and Secure Psychiatric Workers, the POA is the largest UK Union in this sector, able to trace its roots back more than 100 years.