When you can leave or refuse unsafe work in Northern Ireland, protection from detriment and dismissal, and how to complain to HSENI.
Employees and workers in Northern Ireland who think their work is unsafe and want to know whether they can refuse to do it, leave, or report it, and anyone treated worse or dismissed because they did.
Under Article 68 of the Employment Rights (Northern Ireland) Order 1996, you have the right not to be subjected to any detriment by your employer because, in circumstances of danger which you reasonably believed to be serious and imminent and which you could not reasonably have been expected to avert, you left (or proposed to leave) your place of work or any dangerous part of it, or, while the danger persisted, refused to return to it.
You are also protected if, in circumstances of danger which you reasonably believed to be serious and imminent, you took (or proposed to take) appropriate steps to protect yourself or other people from the danger.
This does not protect you if your employer shows that the steps you took were so negligent that a reasonable employer might have treated you as your employer did.
These rights have covered workers, not only employees, since 31 May 2021.
Under the Health and Safety at Work (Northern Ireland) Order 1978, your employer must ensure, so far as is reasonably practicable, the health, safety and welfare at work of all its employees. As an employee, you must take reasonable care for your own health and safety and that of other people affected by what you do at work, and cooperate with your employer on health and safety.
Detriment means being treated worse than before, or having your situation made worse, because of what you did. You can make a claim to an industrial tribunal.
If you are a worker and not an employee, and your contract is ended for this reason, that can be a detriment claim.
If you are an employee and you were dismissed for leaving, refusing to return, or taking steps to protect yourself or others in circumstances of serious and imminent danger, it is automatically unfair dismissal under Article 132. No minimum length of service is needed if you were dismissed for an automatically unfair reason.
Workers who are not employees cannot claim unfair dismissal.
First raise your concern with your employer, your workplace safety representative or your union representative.
You can make a complaint about an unsafe or unhealthy work activity to the Health and Safety Executive for Northern Ireland (HSENI): phone 0800 0320 121, email mail@hseni.gov.uk, or use the complaint form on hseni.gov.uk.
HSENI deals with places such as factories, building sites, farms, schools and universities. For some other workplaces, the environmental health department of your local district council is responsible instead.
If you are an employee, you are protected from detriment and dismissal for bringing health and safety concerns to your employer's attention by reasonable means. This applies where there was no safety representative or safety committee, or it was not reasonably practicable to raise them that way.
If you are a worker and not an employee, reporting a danger to health or safety can be whistleblowing: see our whistleblowing guide.
Under the Workplace (Health, Safety and Welfare) Regulations (Northern Ireland) 1993, during working hours the temperature in all workplaces inside buildings must be reasonable.
Guidance says the temperature should normally be at least 16°C, or at least 13°C if the work requires physical effort. There is no law for a maximum working temperature, or for when it is too hot to work.
The 16°C and 13°C figures do not apply where food or other products have to be kept cold, or where a room has to be open to the outside. The temperature should then be as close to those figures as is practical.
Your employer should then reduce the cold where it can, for example by keeping chilled areas small, keeping draughts away, fitting self-closing doors and providing insulated flooring or suitable footwear.
If the place still cannot be made reasonably comfortable, your employer should give you suitable protective clothing and rest facilities, and where practical rotate tasks so your time in the cold is limited.
If your employer does not provide a reasonable temperature, raise it formally with your employer, safety representative or union representative. You can also complain to your local council or HSENI.
Whether you can leave because of the temperature depends on the serious and imminent danger test above.
No. Your employer must not charge employees for anything it does or provides to meet a specific legal health and safety requirement.
Your employer must report certain work-related injuries, diseases and dangerous occurrences under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (Northern Ireland) 1997. You can make a complaint to HSENI about an unsafe work activity.
If you are an employee, the law protects you from being treated worse, and from being dismissed, for doing health and safety activities your employer gave you to do. It also protects your work as a health and safety representative or safety committee member, if you were appointed under the law or your employer accepts you in that role. This protection is for employees only. A worker who is not an employee is still protected for leaving, or refusing to go back to, serious and imminent danger. Reporting a danger can also be whistleblowing. Interim relief is not covered here: ask the LRA straight away.
Everything in this guide applies on a building site too: the serious and imminent danger test, the protection from being punished or sacked, and reporting to HSENI.
On a building site there are extra rules (Construction (Design and Management) Regulations (Northern Ireland) 2016):
Working at height (Work at Height Regulations (Northern Ireland) 2005, regulation 6): your employer must not have you work at height if the job can reasonably be done safely another way. If you do work at height, your employer must take suitable and sufficient steps to stop anyone falling a distance that could cause injury, so far as reasonably practicable. It must first use a safe existing place of work, or a safe existing way to get to it. If that is not reasonably practicable, it must provide equipment that prevents a fall. If a risk of falling is still left, your employer must also provide equipment that cuts the distance and the harm of a fall, and extra training or instruction.
Asbestos: HSENI says you should always ask your employer whether the building has been checked for asbestos. In a building that is not someone’s home, you have a right to be given information about where asbestos is and what condition it is in.
In any job, high-risk or not: if you are an employee, your employer must give you information you can understand on the risks to your health and safety that its risk assessment found. It must also tell you what it is doing to protect you (Management of Health and Safety at Work Regulations (Northern Ireland) 2000, regulation 10). It must give you health and safety training when you start, and again when you face new or bigger risks, for example from new equipment, new technology, a new way of working, or a move to different work or new responsibilities. The training must take place during working hours (regulation 13).
Before most claims you must notify the Labour Relations Agency (LRA). Early conciliation through the LRA is free. You can't go to a tribunal without at least considering it, unless you are exempt.
If you notify the LRA within your time limit, the clock stops for up to 1 calendar month while conciliation takes place, plus up to 14 more days if both sides agree.
Being treated badly after a health and safety issue is not enough on its own. The health and safety reason (for example raising a concern, or leaving or refusing to return because of serious and imminent danger) must be why the employer did it. For bad treatment short of dismissal, it is for the employer to show why it acted. For an employee's dismissal, it must be the reason, or the main reason if there was more than one.
If you do not have enough service for an ordinary unfair dismissal claim, it is for you to show the health and safety reason was the main reason for the dismissal.
Labour Relations Agency (LRA): 03300 555 300. Early conciliation, and free, confidential and impartial advice on employment rights. The LRA does not advise on whether your own claim will succeed.
HSENI: 0800 0320 121, mail@hseni.gov.uk. Complaints about unsafe or unhealthy work activities.
Free advice is also available from your trade union if you have one.
Advice NI: 0800 915 4604
Comments are loading…