Monday 4 January 2021

Section 44 Does Not Protect You

In recent days, I've seen activists on social media bandying around Section 44 of the Employment Rights Act 1996 as a sort of get out of jail free card when being forced into an unsafe workplace by an employer. Unfortunately, this is very much not the case. Below is a guest post from comrade AD, a long-time union organiser, about what Section 44 does and doesn't mean and it makes grim reading for any employee. Getting better legislation, like all things worthwhile, means fighting for it ourselves - and not relying on others.

1. Employers can fire people for not turning up to work. Or even for threatening to not turn up. Or even for no reason at all. It might well be “unlawful” for them to do so. But just because a law says that something shouldnt be done - it doesn’t stop them doing it.

2. That’s because employment protection in this country is not proactively enforced in real time. You can’t call the police or the council or the coastguard or a vicar to intervene if you are sacked.

3. Instead it is left to a collapsing, underfunded, archaic and unfriendly employment tribunal system to retrospectively review possible breaches of employment law where people manage to navigate the labyrinthine procedures for bringing individual claims. The current backlog for claims to be listed to be heard is about two years.

4. If you don’t want to go to a workplace you consider to be unsafe, you absolutely can cite Section 44 ERA 1996 as a defence for your actions. But an employer may just decide to ignore you and either not pay you or just sack you instead, many safe in the knowledge there are few jobs out there for you to go to and that there would be many years before they could be held to account.

5. If you are summarily dismissed by your employer because they say it’s gross misconduct for you not to turn up then you would have no income from that moment, and by extension no rights to any Universal Credit around job seeking as the state sees your unemployment as brought on by your own action.

6. Welcome to Britain. I wish it was not like this and have spent my life trying to change things but to no avail.


Anonymous said...

Close the zoos!

Anonymous said...

Depressing - and on the money. One footnote to bear in mind, though. If you are determined to die on the hill of not entering an unsafe workplace, and get dismissed for Gross Misconduct as a result, then try immediately to negotiate a statement in the final written dismissal letter that your departure was "By mutual consent." The employer won't have to worry about tribunals and in exchange you get to claim Universal Credit. Yes, it's a shitty lose-lose bargain, but it's marginally less shitty than the alternative.

Zeph said...

Nothing to stop you taking them to an employment tribunal claim

Phil said...

With all due respect Zeph, did you even read the post?

And with employment tribunals, it's worth noting a tribunal cannot force an employer to take a claimant back on. They do not have that legal power.

Richard said...

That's the best and clearest, no nonsense, honest employment advice I've ever seen (and I'm including the employment advice I myself have given over many years). I am fortunate enough to know the author of that advice and he is a first class perfomer. He has achieved astonishing results for workers in the most unpromising situations.

But dear Anonymous, don't offer legal advice if you are not appropriately trained or qualified. I've never met an employer who would offer a reference that is of any use whatsoever to someone dismissed for gross misconduct. Sometimes a good reference can be achieved in negotiations to settle a Tribual claim arising from the dismissal. Such negotiations need to be skilfully handled by someone appropriately qualified.

Your advice about a reference is both wrong (if you voluntarily leave your employment to become unemployed there will be problems with claiming Universal Credit), and looks rather like an incitement of the employer to create a false instrument, the reference, for you to use for financial gain. This is a serious criminal offence, of course.

BCFG said...

"I wish it was not like this and have spent my life trying to change things but to no avail."

You being in the Tory lite labour party has probably done more to undermine employment rights than anything positive you think you have done.

So I would say you share the blame for this sorry state of affairs.

BTW are you still in the tory lite Labour party and continuing the attack on workers rights?

Phil said...

How quaint, an outburst of revolutionary purity from an anonymous contributor. Funny that.

BCFG said...

"How quaint, an outburst of revolutionary purity from an anonymous contributor."

Doesn't change the fact though does it. I mean there is revolutionary purity and there is swimming in shit and you swim in shit.

Phil said...

Bless, imagine thinking class struggle is a clean business. Spoken like a true abstentionist and keyboard idler.

BCFG said...

I am not an abstentionist, you are simply working for the other side while claiming to be a lifelong campaigner for workers rights.

If you hadn't patted yourself on the back I wouldn't have minded so much.

Phil said...

You obviously didn't read the post or my last comment properly.

And if you're not an abstentionist, why are you taking such a sniffy attitude to people up to their elbows in the morass of politics? The Labour Party is one area for leftists to work in. The trade unions another. It's as simple as that.

BCFG said...

"why are you taking such a sniffy attitude to people up to their elbows in the morass of politics"

Because you believe "The Labour Party is one area for leftists to work in"

Haven't the Corbyn years finally put that myth to bed once and for all?

You are toiling for the enemy, you know those who would rather see Boris Johnson as prime minister rather than Corbyn and those fellow travellers in the US who give a standing ovation to Juan Guaido. Do you think Guaido gives a damn about workers rights?

That is the side you are putting all your energy into, you would be doing the workers a favour if you took an extended break and stopped dabbling in 'practical politics'.