Covid-19: guidance to reps and members on the introduction of the Government’s Plan B

A new variant of Covid was reported to the World Health Organization (WHO) on 24 November 2021 by researchers in South Africa and within days the WHO had marked it as a Variant of Concern. Scientists are concerned that the changes seen in the biology of the variant could mean that the virus is more transmissible or could be more likely to infect people even if they have been vaccinated or had a previous infection.^[1] The first case in the UK was identified on 27^th November 2021 but by 16^th December that had increased to 11,708^[2] amidst concerns about the potential for hospital admissions to rise significantly and fears that the NHS may be overwhelmed.

^[1] UK Parliament publication: COVID-19: The Omicron Variant, published 3^rd December 2021 at:  https://post.parliament.uk/covid-19-the-omicron-variant/

^[2] See: https://www.bbc.co.uk/news/live/uk-59679703

The Scottish First Minister has announced a series of measures that will apply in the nation and which can be found at: https://www.gov.scot/coronavirus-covid-19/

In Wales, the First Minister has announced a range of measures under the title of ‘keep Wales safe this Christmas’ and which are available to read at: https://gov.wales/coronavirus

Measures that have been announced in Scotland and Wales incorporate those in England but are immediately clearer and appear to go further. In Wales, from 27^th December 2021, 2 metre social distancing will return in offices alongside extra measures, such as one-way systems and physical barriers, to protect customers and staff.^[1]

^[1] See: https://gov.wales/new-advice-keep-wales-safe-christmas

The Railway Industry Coronavirus Forum (RICF) has now resumed its fortnightly meetings to monitor the situation and enable discussion and agreement on the introduction of measures related to protection and mitigation against CV19

The RICF is made up of representatives from TOC and Network Rail employers who, along with the ORR’s Rail Safety Regulator, meet with the railway trade unions and where issues listed by either said can, hopefully, be resolved.

Since the end of November, the RICF has agreed the following measures:

• Use of face masks. TSSA’s website (https://www.tssa.org.uk/get-help/coronavirus) has a copy of the agreed protocol: “Face Covering Updated Guidance for Employees: - 30 November 2021.” You will find more information on this subject later in this document.  Members should also note that whilst the agreement specifies a number of places where masks are not required to be worn, UK Government guidance makes it clear that employers cannot prevent an employee deciding to wear a face covering. It also states that it is an offence (criminal law) for an employer to prevent an employee wearing a mask even if it is not required.^[1]
• Pay arrangements and sickness absence monitoring. TSSA’s website has a copy of an agreement reached between the trade unions and employers. For clarity purposes, this means that:
  • Staff required to self-isolate having come into contact with someone who has Covid will be paid company sick pay
  • A member who develops Covid 19, confirmed by a PCR test, will be paid company sick pay irrespective of whether they have been fully vaccinated
  • the recording of absence related to Covid will not trigger detrimental Managing for Attendance (sickness absence) processes and the days off sick will not be added to the days missed through other illnesses.

NOTE: For clarity, some sickness absence processes are based on ‘instances’ (which could be a period of time like a week) whilst others are measured through the number of days).

• Driver Training Arrangements. The issue here is about in cab training when more than one person could be in the cab of a train in order to carry out training, development or assessment activities.  At the RICF’s meeting on 15^th December 2021, an agreement was reached that repeated Paragraph 3.3 of the “Cab access – transitioning away from bubbles and testing” document agreed at RICF at the beginning of September 2021. Paragraph 3.3: “It is acknowledged that a small proportion of employees will continue to be anxious about participating in in-cab training, development or assessment activities, for example, due to not being fully vaccinated or personal factors that cause legitimate concern. Therefore, employers with support from trade unions will encourage such employees to raise their personal concerns with their employer directly or through their local representatives so that the individual’s specific circumstances will be discussed and reasonable adjustments considered as part of the employer’s individual risk assessment process.  Note for guidance: The request for employees to identify themselves is legitimate, as it enables the employer to continue to satisfy their obligation(s) to the employee with regards to their health, safety and wellbeing in the workplace. The employee should be assured that identifying themselves will be treated confidentially, not be associated with any stigma or lead to them being treated unfairly. This will enable the employer to discuss the reasonable adjustments necessary to mitigate the risk of transmission in the workplace and/or to address individual circumstances.”

Apart from vaccination status, personal factors that could cause legitimate concern covers a variety of circumstances such as an employee’s own health and medical condition as well as those of any family members with whom they live - eg, someone who would have previously been classified as clinically vulnerable. The NHS has updated advice for people who are especially vulnerable from CV19 and which an be found at: https://www.nhs.uk/conditions/coronavirus-covid-19/people-at-higher-risk/who-is-at-high-risk-from-coronavirus/    

The requirement for someone raising a legitimate concern in connection with in cab training is that a personal risk assessment is undertaken which the member and their TSSA rep should be involved with putting together. As part of its deliberation, it must consider how the risk of infection in a train cab is increased without the use of mitigating measures, including the use of face masks, thorough cleaning arrangements, provision of hand sanitiser, adequate ventilation, etc.

Members with a legitimate personal concern should raise those issues with their manager. TSSA will support members in this process. Members should not be subject to duress or pressure when they raise a concern, as indicated in the quote above from Paragraph 3.3.

NOTE: In the event that members find themselves subject to duress or pressure, TSSA will not only use internal company procedures because of the company’s failings, we will also seek legal advice about appropriate remedies and look to ballot members for industrial action over legitimate safety concerns.    

^[1] See: “Staff in indoor settings” at: https://www.gov.uk/government/publications/face-coverings-when-to-wear-one-and-how-to-make-your-own/face-coverings-when-to-wear-one-and-how-to-make-your-own

What should happen when an employer wants to revise existing risk assessments of introduce new ones is that they must first consult the relevant union reps. 

Consultation under the Safety Reps and Safety Committee Regulations 1977 (SRSC Regs) 1977 should take place with the recognised trade union’s health and safety reps but TSSA’s position – and as advised to all members – is that staff reps should be included when safety reps are not available (or perhaps do not have the relevant knowledge of the subject of the risk assessment). 

Where employees are not covered by collective bargaining, it is required by the Consultation with Employees Regulations 1996 that ether the affected group nominate a rep or all members of the group are consulted.     

The important point under both bits of legislation is that consultation takes place in “good time”  which means that reps and staff – those who often know the job and its pitfalls really well - should be involved from an early stage in putting the risk assessment together. 

It is not good enough – and breaches the official Code of Practice and the law – if an employer presents what is in essence a fait accompli or fails to consult at all.  TSSA takes this matter very seriously and will engage with the Rail Regulator at the ORR over any breaches of legislation. We will also consult our members over industrial action where your health and safety is put at risk  

Further guidance is available in the TSSA Reps Bulletin on Consultation on Risk Assessment which appears on the Union’s Website. Reps are also recommended to contact their TSSA organiser for support and guidance over risk assessments to ensure that their employer does the right thing.

Studies have shown that Covid-19 can be transmitted in aerosols when in poorly ventilated areas. Good ventilation really matters!

Stuffy rooms, stale air: If you walk into a room and the air feels stale, something is wrong with the ventilation. Not enough fresh air is being introduced, which increases your chances of getting infected by coronavirus. Research shows that in confined spaces there can be "airborne transmission" of the virus - with tiny virus particles lingering in the air. Legislation requires that workplaces are properly ventilated – see: The Workplace (Health, Safety and Welfare) Regulations 1992 which state: Effective and suitable provision shall be made to ensure that every enclosed workplace is ventilated by a sufficient quantity of fresh or purified air.

Many control centres and ticket offices in particular are in a building where the windows are sealed, air conditioning will extract stale air and pipe it to an air conditioning unit, often on the roof. Fresh air can be pulled in from outside and mixed with the old inside air, before being sent back into the building. Given the risk of Covid-19 infection, the proportion of fresh air must be maximised, preferably to 100%. But that is costly - the incoming air has to be heated in winter and cooled in summer, all of which requires energy. Find out what your air conditioning arrangements are and insist on it properly ventilating your workplace.

Watch out for ‘air conditioning’ that is not air conditioning!: Many workplaces have ‘comfort cooling’ instead of air conditioning - the simplest is a slender white box mounted on walls or ceilings. This draws in air from a room, chills it and then recirculates it back out again. This can spread the virus. 

A modern air conditioning system will have filters - but do they filter out viruses, and are they checked frequently for the presence of viruses?

Watch out for draughts. Fresh air is touted as the answer, but it is not that simple. If someone sitting beside an open window is infectious, they could shed virus to others downwind. However, on balance a plentiful supply of fresh air diluting the virus is likely to outweigh any risks.

The latest UK Government advice on ventilation can be found at: https://www.gov.uk/government/publications/covid-19-ventilation-of-indoor-spaces-to-stop-the-spread-of-coronavirus/ventilation-of-indoor-spaces-to-stop-the-spread-of-coronavirus-covid-19  See the section on “Ventilation on the workplace…” and note the reference to the use of CO2 monitors when assessing poorly ventilated areas.

As the Omicron variant spreads, TSSA believes that there is a need to revise the arrangements around the use of face masks in order that they do not only apply in specific indoor settings where members meet customers without a screen between them. Instead, we believe that they should also in offices and other indoor spaces where employees work together. This may seem redundant when may staff are now working from home if they can. However, within the railway industry there are still staff in tickets offices, control centres and other locations who are required to carry on their job alongside colleagues. In such workplaces, it is imperative that staff wear face masks unless they have Perspex screens in place to provide a separation of some form or are seen to be part of bubble that is subjected to regular CV19 testing.