Q: What is 'section 44'?

Section 44 exists in law to protect employees where there are concerns about the safety arrangements at work.

Section 44 has received significant mileage in online forums where some people are espousing the legislation as a silver bullet to protect employees.

Section 44 is not something any employee should unilaterally determine that they should invoke by themselves. There are certain measures and actions that should be attempted in the first instance prior to invoking Section 44.

Additionally, if invoked, this could potentially be something that would end up in an Employment Tribunal. Even though there are protections in law, there is nothing that can be immediately done to prevent an employer replacing an employee who has invoked Section 44. If this were to happen, the employee will likely have to wait at least 18 months – unwaged, before there is even the chance of a case being heard by an Employment Tribunal.

Therefore, if you don’t think that risks in your place of employment are being managed, then you should engage with your employer to discuss your concerns and seek amendments and improvements to the Risk Assessment as well as how the Risk Assessment is enforced and operated. 

If you are someone that has special circumstances, then this should additionally be factored into the Risk Assessment of your employer. This would be considered a reasonable request, especially in light of the fact that employers had to previously respect the rights of employees who were described as vulnerable or clinically vulnerable in 2020.

You certainly can reserve the right to use section 44 of the 1996 Act, but it is essential that you take NSEAD advice before you do so.

For more information about Section 44 and COVID-19 health and safety concerns, click here.