Last Tuesday workers across the country took a moment on the International Workers Memorial Day (IWMD) to remember those who have lost their lives at work, especially those who have fallen to the Coronavirus. It is right to do so but the IWMD is about empowering workers to demand safe places of work as it is remembering those who have died.
The duty to provide safe places of work is an clear one that rests upon all employers and and despite the desperate attempts by NHS trusts to dissuade NHS workers from speaking out the woeful lack of PPE provided to NHS workers (which doesn’t appear to be working) it is clear that this is a duty many employer’s are failing in, and by so doing are putting the lives of workers at risk.
Employers must be held to account for these failures. On IWMD the Chief Coroner issued guidance for Coroners investigating deaths. Even though that guidance has been critically received and interpreted as instructing coroners not to investigate PPE related deaths in the NHS the guidance does still make clear that activities of employers should be investigated. Coronial law means there must be an investigation if the coroner believes the death was from unnatural causes. A death arising from Covid-19 of course on the face of it be a natural cause but the guidance makes clear that is not always the case.
At paragraphs 11-12 the guidance reads:
A death may be “unnatural” where it has resulted from the effects of a naturally occurring condition or disease process but where some human error contributed to death … Accordingly, a death which is believed to be due to COVID-19 may require a coroner’s investigation and inquest in some circumstances. For instance, if there were reason to suspect that some human failure contributed to the person being infected with the virus, an investigation and inquest may be required. If the coroner decides to open an investigation, then he or she may need to consider whether any failures of precautions in a particular workplace caused the deceased to contract the virus and so contributed to death.
Of course, the mere fact that a worker contracts coronavirus at work and goes on to one those tragically killed does not itself mean that is an ‘unnatural death’. What this suggests is that if an worker contracts and dies and the employer in a material way adversely contributed to that then they may be subject to an coronorial inquiry. Situations that engage this scenario could include:
- Failing to provide a worker with adequate PPE; or
- An employer failing to take adequate measures to enforce social distancing at the workplace; or
- An employer taking no steps to remove a sick worker from the workplace; or
- An employer requiring people to travel to work when work could be done at home; or
- An employer failing to ensure that a worker they knew was vulnerable and at risk of more severe consequences of infection being required to come into work when there is inadequate protections (aside from H&S law this could well engage the duty to make reasonable adjustments where the vulnerability arises from disability).
Whether each incident will be sufficient to amount to an unnatural death is a case by case decision but I suspect the larger issue will be there will be a huge under-reporting of such incidents. And, going forward, that will be something trade unions will need to be at the forefront of addressing, just as they have in preventing the risks in the first place.
As I was writing a tragic example of just such a case was highlighted by the United Voices of the World Union in the death of two workers responsible for cleaning Ministry of Justice buildings and employed by OCS.
UVW report that “one of the cleaners who died was named Emmanuel. He was from Guinea Bissau and a member of UVW who had been cleaning the MoJ for years.
It’s reported that Emmanuel hadn’t eaten at all, or had barely eaten, during the 5 days before his death and was so weak in the hours before his death that he barely knew where he was or how to get home. His last hours were sadly spent at work. Neither the MoJ or their contractor OCS bothered to help him or call an ambulance, and he left work and died on April 23, 2020 at 10:30pm.
Emmanuel had worked at MoJ since February 2018. He was an agency worker for two years, despite repeatedly asking OCS to make him a permanent employee. As an agency worker, he was not entitled to holidays, sick pay, and had no security when taking strike action or engaging in other union organising. Despite the risks, Emmanuel bravely chose to go on strike twice in order to demand a living wage and sick pay.
In early 2020, OCS made Emmanuel a permanent employee. When he fell ill a few weeks ago, he only continued to attend work because the MoJ and OCS refused to offer him any sick pay, despite Emmanuel and his co-workers fighting for years to get a proper sick pay scheme.
Instead, Emmanuel, like millions of other workers, was only entitled to Statutory Sick Pay. SSP provides no money for the first 3 days of illness and £19.17 a day thereafter. Emmanuel simply couldn’t afford to take time off work to seek medical treatment and recover.”
It is a disgrace that OCS do not provide adequate remuneration so that workers feel able to remove themselves from their work when they are ill, and it has to be said that disgrace rests with both OCS and also the MoJ who have contracted them and could ensure minimum employment standards for contracts but have not done so. However, what is also of concern is if OCS knew a worker was unwell with possible Covid-19 then why did they not remove them from the workplace for their and their colleagues safety (for example place them on medical suspension on full pay). A failure to do so is potentially a failure to ensure a safe place of work. That is exactly the type of scenario that could cause hard questions to be asked of both Ministry of Justice and OCS as to whether the tragic death of Emmanuel was an unnatural death.
I am quite certain UVW will be making their own submissions to the Coroner if they feel that Emmanuel’s passing was materially contributed to by the workplace conditions Emmanuel and fellow workers were subjected to. It is sadly the case that Emmanuel’s death will not be isolated and across the trade union movement comrades are now dead and, in some cases, that is in part because their employers placed their workers in unsafe conditions with inadequate protection. Those employers need to be accountable for their actions, and one way of doing so will be to ensure that unions formally record concerns to coroners where, inevitably because of numbers, there will be pressure to just ‘rubber stamp’ deaths as natural.
The UVW is asking supporters to take action to demand safe and fair working conditions in OCS for its members, please support them.