COVID 19, Section 44, and Industrial Action

Nobody can cease to be impressed by the way the NEU has recently organised in relation to its members. The Government’s attempt to keep schools open, and in doing so put teachers lives at risk, has opened the question of using Section 44 of the Employment Rights Act, and collective action. But contrary to some criticism, our leadership in the PCS has been using Section 44, albeit on a smaller scale.

Driving Examiners (who are PCS members) have been expected to carry on with Driving Tests throughout this pandemic where no social distancing can take place in a car, sitting with people they have never met – up to six times daily. The instruction and advice was to keep ventilation circulating by opening the window of a car, keeping the candidate’s vehicle clean, and wearing a face covering. None of these measures have taken away the fear that many PCS members have, particularly so given the new strain of virus which is far more contagious. All of this has caused huge stress and anxiety to our members.

Right from the start of the pandemic we have kept our members informed of their rights, in particular their right to remove themselves from a workplace using Section 44 of the Employment Rights Act. This allows an individual to remove themselves from a workplace if they believe they are imminent danger.

As a result of us advising members to use Section 44 the Cabinet Office and Government Ministers knew that it was legally acceptable for individuals to use this. They reacted by telling any staff that if they used Section 44 they could take their own annual leave or have unpaid special leave. Clearly that is a detriment for many members and not surprisingly very few were prepared to take that option. It was also the case that in DVSA we have been fighting against PHE and management advice where they continue to say that the Operating procedures they have put in place make driving tests safe. Because of this, in the early months many staff not only continued to take driving tests, but also took up overtime offers.

Despite this we have argued that driving tests must be related to the tier restrictions i.e. reducing the number of or stopping driving tests according to the tier restrictions. This meant that after much pressure we were able to agree to reduction of 6 tests to 5 in Tier 3 with no overtime, and finally have been able to close down all driving tests in Tier 4 areas under the national lockdown. Notably, we gained agreement that all clinically extremely vulnerable members have stayed at home since the March lockdown. The talks we have held have also been difficult in that Devolved administrations have also taken their own and different decisions within the nations. It has seen driving tests suspended in Scotland or Wales at certain points, whilst they have continued in England and different advice on driving tests in all nations.

Although some concessions were given around driving tests it is clear that many of our members still do not feel safe. Recently, we took a decision to ballot members in 10 driving test centres, where members stated they do not feel safe to conduct driving tests. This ballot is based upon Section 44. These test centres are primarily in the North West and the North and have had high rates of COVID-19 infections for many months. It is only when national lockdown restrictions were imposed that driving tests have been stopped. Once the national lockdown ends driving tests are likely to carry on in all tiers.

The good news is that the ballot has proved successful with a 70% turnout providing 70% in favour of taking industrial action. This will mean that not only will our members be protected by using Section 44, but they will be protected in law by the industrial action ballot.

However, any action using Section 44 will likely see pay being deducted and members told they are to use unpaid special leave, so this ballot is unique in that it will enable PCS to take Industrial action and take Employment Tribunals using Section 44. This is because using Section 44 should mean no detriment to an individual. PCS are the first union to take this legal position. So at the end of this lockdown if our members in the balloted areas are asked to return to work with no vaccine and no testing in place then we will be calling those members out, and they will be able to use Section 44 to do that.

What is apparent is that the NEU were able to get out to a large number of its membership to push the question of Section 44. PCS will continue to look to do that where members are being forced to work but we shouldn’t also forget that many of our members are still working from home, thanks to the efforts and arguments PCS reps have put.

There are clearly things we can do. Firstly, we need to advertise that a ballot has taken place involving Section 44 and why, and as importantly that this can be used in other areas as a tactic and strategy. Secondly, we need to gain support for our members if they are forced to take strike action, they will be on strike pay but will need more funding as well. That will raise awareness on a larger scale about what we can do with Section 44.

Lastly, and most importantly we need to build confidence amongst our membership by showing that in the most horrendous of situations that PCS members and other workers can fight back and can win.  If we are to take on this Government over the big issues of pay, and jobs then it will be the smaller victories that can build a momentum, and Left Unity members have vital role to play in that.

Paul Williams PCS Department for Transport Group President and PCS NEC member (pc)

Paul is a Democracy Alliance candidate for the NEC elections this year – click here for full candidate list

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