EC Meeting Papers March 2018

Health and safety Health and Safety law and school, college and nursery procedures and policies continue to apply. If you are concerned about your health and safety or that of the children at your workplace, contact Voice immediately for advice. Do not remain on the premises alone or in very small numbers if your colleagues withdraw as, on health and safety grounds, this would be unwise. Write to your line manager to say that you are available to undertake any tasks that are appropriate and possible, taking into account the exceptional circumstances, and that you would be happy to undertake appropriate duties in a safe environment. What if? If there is a dispute about a particular instruction, difficult questions may arise. Is a particular instruction reasonable? When can an employee say no? When is it reasonable for an employee to refuse an instruction? What are the implications for the employee? When does a refusal to carry out an instruction amount to industrial action? Does saying ‘no’ mean that you’re striking? There are no general answers to these questions or to others like them and each question can only be answered in the particular circumstances. With this in mind, we would urge you to contact us at a very early stage in any situation of this type. Your Contract of Employment The contract of employment is an agreement between the employer and the employee which includes a number of implied duties. The employee’s duties are to work for the employer, to co-operate generally, and to be loyal. Cooperation includes the duty to obey lawful and reasonable instructions. A breach of this duty is normally regarded as a fundamental breach of contract by the employee, which means you could be dismissed without notice on grounds of gross misconduct.

consistent with the employee’s contract. In the education sector, duties are set out in contracts, job descriptions and national conditions of service. Employment tribunals considering ‘disobedience dismissals’ focus on three main issues: > whether the instruction given was lawful; > whether the instruction was reasonable; and > the reasonableness of the employee’s refusal. Clearly it cannot be fair to require the employee to carry out an illegal instruction or an activity which would put their own health and safety, or the health and safety of others, at risk. Saying “No” to your employer As already stated, Voice’s Cardinal Rule says that members cannot be involved in any form of industrial action at work. However, as individual employees, members are entitled to disregard an instruction on the basis that it is unreasonable. One situation in which an instruction would be unreasonable is where the employee is required to do something outside their contract, for example, being required to work in conditions that create an unacceptable risk of personal injury. The risk of personal injury applies to the members of staff, to colleagues and, of course, children and young people. The risk can arise from physical conditions such as defective premises or from the working environment. The risk may not only be of accident harm, but of intentional harm caused by a violent young person or adult from outside the workplace. One or more Voice members at a workplace can exercise the right to take a stand on a health and safety issue such as this, notwithstanding What is ‘appropriate action’ depends upon all the circumstances, in particular the level of danger, the steps that can reasonably be taken by the employer to reduce or contain that danger, and whether the employer is offering to take any or all of those steps or to enter into discussions about the problem. that other colleagues may, because of their concerns, be organising industrial action.

In assessing the reasonableness or unreasonableness of an instruction, a tribunal decides first of all whether the instruction is