Our email reporting concerns 22.01.21
Dear Simon, Gillian, Mark,
I am writing on behalf of UNISON members further to discussions this week regarding serious safety concerns that we feel have the potential to put employees of the University at risk of serious and imminent danger, and particularly those working within the University nurseries and the department of cleaning services.
It has been well publicised that the new variant of Covid-19 is highly transmissible – between 50-74% more transmissible than pre-existing variations of Covid-19, according to London School of Hygiene and Tropical Medicine: New modelling estimates the potential impact of the new COVID-19 strain | LSHTM.
It is because of the new strain that infection rates and the R number have dramatically increased since December. It was precisely because of the “increase in risk associated with the new variant” that SAGE recommended closing schools as part of a strategy of strengthening control measures at its meeting on 22 December 2020. Similarly, SAGE expressed similar concerns in relation to the HE sector: “The potential for the new variant to increase transmission associated with the return of universities in the new year also needs to be considered…”
Unison members employed by your institution have a right to work in a safe working environment, and workers who reasonably believe they are facing serious and imminent danger have the right to leave the workplace, or to refuse to attend. The effect of those rights must be fundamentally reassessed owing to the greater risk of transmission posed by the new variant of Covid-19. The same applies to the existing control measures adopted by your institution.
We only summarise the relevant legal provisions below. The key point is that all of these legal duties must now be viewed in circumstances where Covid-19 is much more transmissible than it was before.
- As employer, you owe duties under s. 2 of the Health and Safety at Work Act 1974 to ensure, so far as is reasonably practicable, the health and safety of their employees. This includes a duty to provide work systems and work environments which are, so far as is reasonably practicable, safe and without risk to health. Employers owe similar duties to others, who are not in their employment, under s.3 of the Act.
- Under the Management of Health and Safety at Work Regulations 1999, as employer you must undertake a suitable and sufficient assessment of the risks to health and safety affected by the conduct of the employer’s undertaking. The risk assessment must be reviewed whenever there is a “significant change in the matters to which it relates”. The new strain of Covid-19 triggers this duty.
- As employer, you must establish appropriate procedures which enable employees to leave or stop work if they are exposed to serious, imminent and unavoidable dangers.
- Measures for controlling risks to health and safety must be adopted in accordance with a hierarchy of measures set out in Schedule 1 to the 1999 Regulations. The primary duty is “avoiding risks”, followed by “evaluating risks which cannot be avoided” and then “combating the risks at source”. All these duties point towards considering ways to completely avoid exposure to the risk of transmission.
- While there is a duty to provide suitable PPE to those who are exposed to risks to health and safety, this is only intended as a last resort, where a “risk has not adequately been controlled by other means”.
- HE employers owe duties to assess risks and to protect employees against exposure to biological agents, such as the new strain of Covid-19, under the COSSH Regulations 2002.
- Employers must inform and consult with safety representatives under the Safety Representatives and Safety Committee Regulations 1977 (and the linked regulations where no union is recognised) on all matters to do with health and safety.
Finally, under sections 44 and 100 of the Employment Rights Act 1996, employees are protected from detriment or dismissal where there exist circumstances of danger which they reasonably believe to be serious and imminent, and they leave or propose to leave, or otherwise refuse to return to their place of work. There are also protections under these provisions for those who take appropriate steps to protect themselves or others in circumstances which the employee reasonably believes amounts to a serious and imminent danger. These rights remain highly relevant to anyone expected to attend their place of work in light of the new strain of Covid-19, and it would be wrong to assume that existing controls mean they don’t apply. Employees must not be subjected to any disadvantage, such as deductions from pay, where they exercise these rights.
Health & Safety Concerns
In light of the above obligations imposed upon you as employer, UNISON raises the following health and safety concerns on behalf of its members employed at the University:
- Despite significant concerns being reported by staff via their representatives and several cases being recorded across two of the sites, the University is currently failing to take action to reduce occupancy at the nurseries it operates by, for example, supporting parents in temporarily reducing the number of days of childcare. We note that one of the cases reported was a member of agency staff and therefore this is directly linked to the current level of demand on the service. The fact that these are University owned and operated facilities raises the bar in respect of what action is “reasonably practicable” in the circumstances and in particular the University has the rare opportunity to reduce the risk of transmission in the childcare settings it operates by taking a supportive attitude towards the parents who also work at the institution who may want to temporarily reduce or suspend their use of childcare.
- While communications to students regarding access to on campus facilities are currently being strengthened, the initial focus on the fact that the “majority of buildings and services will remain open” in student and staff communications has led to a situation where numbers of students on and around the campus and accessing campus facilities are higher than originally expected, increasing the level of risk posed to all staff and students on campus. This has an impact on the other risks detailed below.
- While we understand that steps are now being taken to restrict access to a number of buildings at present we are unaware of any firm plans to reduce the number of staff required to travel to work on the campus, despite the clear instructions to Universities to reduce the number of people on campuses to that which is purely necessary for essential research and the provision of services to the small numbers of students specified in government guidance. In particular we are concerned at the plans to maintain the same numbers of cleaning staff at work even though many buildings are being placed into “standby” and only require cleaning once per week. We are aware of possible transmission occurring amongst cleaning staff in the last week, and any concentration of staff in those buildings that remain open will clearly increase the level of risk.
- No clear instruction has been issued in general to all managers to review the documents that act as individual risk assessments for those at higher risk of the virus – we have instead needed to raise this either in individual casework or with departments on a case by case basis. In addition and unlike the first lockdown, no planned approach has been taken to the release of individuals at higher risk from the virus from the need to undertake on campus work, depending instead on variable local arrangements and the ability of staff themselves to raise their concerns.
While we have had constructive discussions this week in respect of some safety issues such as the above-described list of operational and “standby” buildings, we are concerned that the above matters do have the prospect of causing serious harm to those at the University if action is not taken urgently. As such we require remedial action to be taken urgently in relation to the above serious health and safety concerns, as well as a written confirmation of the plan of action for addressing each of them. We require this action to be taken as well as details of it within the next working day (i.e. by Tuesday 26th January at the very latest).
If remedial action and written confirmation of the remedial action, is not received, or considered to be inadequate to address these concerns, then UNISON will provide information and advice to its members as to their individual statutory rights under sections 44 and 100 Employment Rights Act 1996.
For the avoidance of doubt, if an employee has expressed serious health and safety concerns through their trade union and those have not been addressed, and they reasonably believe their health and safety to be at serious and imminent danger, then they have rights under sections 44 and 100 of the Employment Rights Act 1996, not to face a detriment (dismissal or reduction in pay) for not attending an unsafe workplace.
It is of course our hope that this does not become necessary – we are aware that aspects of the above have been raised in the meetings we have had this week and hope that work is already being undertaken to address these matters which we may be unaware of. However we are dealing with high levels of concern amongst our members and feel we needed to urgently notify you of the potential consequences of this in the actions individuals decide to take to safeguard their safety. Clearly urgent action is required by the University to protect its staff.
Please confirm any action taken in response to this letter before this coming Tuesday the 26th January.
All best wishes,
Joint Branch Secretary and H&S Officer
Birmingham University UNISON
University’s response 26.01.21
Thank you for your email which we appreciate has been written from a point of genuine concern for your members. Before we respond in detail we think it is important to add to your background.
The University has placed the safety of staff (and students) first throughout this pandemic. This has been made clear in numerous emails and Health and Safety meetings. We have also made it clear that, should the situation change, we will reflect on our approach and if necessary, adopt a different strategy. We have also worked with the Trade Unions particularly around how we assess and mitigate any safety implications of the business decisions that need to be made. Furthermore, we have endeavoured (and succeeded) at all times to be consistent with government guidance. Currently the government guidance notes that “universities should consider appropriate provision to support access to university facilities to support online learning (e.g. library services or study spaces) and to prevent isolation and mental health issues of students”. Furthermore the guidance notes that there are a subset of students who, on an exceptional basis (i.e., those not on exempt programmes) require access to “university facilities to access online learning (for example because they do not have access to appropriate study spaces or facilities in their usual accommodation)”. In addition, the importance of maintaining critical research is also noted in the latest guidance: “researchers and research students who require access to specialist facilities for their work” should be allowed to access University facilities. Given that we are a campus based University, most of the specialist facilities are, as one would expect, on campus. The importance of maintaining an on-online offer for our students’ education has been explicitly stated in the government guidance, i.e., “All other courses should be delivered online until at least mid-February”. Taken together, the above will inevitably result in a demand for childcare. There are of course other community members who may, for very good reasons, require access to the nurseries facilities that we operate. The government has stated that “Early years settings (including nurseries and childminders) are to remain open”. The reasons behind this have been reiterated in Prime Minister’s briefings by both the Prime Minister and the Chief Medical Officer.
The important contributions that UK universities are making in addressing the pandemic are summarised on the Universities UK website. We could specifically summarise the excellent work that our colleagues have undertaken since it is important to fully understand the background, but in the interest of brevity they will be omitted.
It is important to note all of the above since this governs many decisions which have to be made.
We will now address each of your concerns in order:
- Supporting parents. The University has worked hard to implement a number of initiatives which support all members of staff not just parents. The two which we consider to be most important are the strengthening of wellbeing support, particularly the introduction of the Employee Assistance Programme and the reintroduction of the ‘best endeavours’ initiative. The latter shows our commitment to be being as supportive and flexible as possible to support staff through the many challenges that this new lockdown brings. Not unreasonably we have asked colleagues who have to use this initiative to discuss with their line manager first in order to identify what work will be undertaken and what work may need to be allocated to others. This response is in many ways far more generous than the rest of the sector (and other businesses) and therefore we have ‘raised the bar’ in terms of the support we offer. It is unfortunate that you have not recognised this and instead insist that we have failed to support parents.
- Communication to students. We have addressed this point on a number of occasions and as noted above there are a number of students who require access to campus. At all times we have reminded our students (who it is worth remembering are sensible adults) to follow the government guidance. If you have specific examples of where we have advised students not to follow government guidance then please let me know and we will happily look into them. It is also worth noting that just because you disagree with the style of the messaging does not make it is a safety issue.
- Staff on campus. Again this point has been discussed at recent meetings and the reason behind ensuring that buildings remained clean (hygienic) was clearly articulated. Although buildings have been placed on standby, a reasonable part of our estate is required to remain operational in order to support the activities outlined above. In some cases, although a building is on ‘standby’, there is shared space which is used for access purposes and as such this needs to be cleaned. Furthermore, buildings that remain operational require enhanced cleaning throughout the day. It is also worth noting that for a variety of reasons associated with the pandemic, the Facilities Team are operating with a reduced number of staff.
In order to restrict the number of staff on campus, we have restricted access to buildings and issued critical worker letters. This is in addition to the clear communications issued by HR in January explicitly outlining who should be on campus. Thus, your implicit assertion that we have not undertaken steps to reduce the number of staff on campus is, I am afraid, fundamentally incorrect.
- Risk Assessments. We again note that our approach is consistent with government guidance and highlight (as previously discussed) that all building related risk assessments have been revised and are available on the intranet. We also note with interest that staff within the nurseries (whom you highlight) have all had appropriate one-to-one discussions with their line managers within the last 2 weeks in order to discuss their personal circumstances and address any issues that they may have in relation to the current lockdown. Furthermore, the following additional measures have also been introduced in our nurseries since the start of January:
- Air purifiers have been installed in all playrooms.
- Enhanced PPE has been made available to all staff.
- Enhanced cleaning of all touch points.
- All COVID related signage has been updated.
- In agreement with parents, we have implemented a system to ensure that children can only attend one childcare setting.
- Where agency staff are required for cover purposes, it is a prerequisite that they have not been to another setting within 48 hours prior to starting.
- Communication to parents reinforcing the need to social distance, to wear face coverings and also the requirement that only one parent is allowed to drop off/collect their child.
- Managers are no longer to enter playrooms unless there is an urgent need.
- The installation of Perspex screens in staff rooms to aid with social distancing.
- Communication to staff on how to book a lateral flow test.
We also note that the nurseries are operating a reduced number of hours compared to normal operations. Taken together, these measures go considerably beyond the practice taking place in many (if not all) local nurseries and is further evidence of us ‘raising the bar’.
It is unfortunate that you feel the need to resort to demands, particularly noting all of the above, none of which should be new to you considering the conversations we have on a regular basis and the discussions you have had with nursery staff. However, as noted at the start of the email, we appreciate that your email was driven by a genuine concern for Unison members – something which we all have in common.
As always, we remain open to discussion on how we can improve safety within the context in which we operate.
Mark, Gillian and Simon