Health and Safety in Employment Act 1992

  • repealed
  • Health and Safety in Employment Act 1992: repealed, on 4 April 2016, by section 231(1) of the Health and Safety at Work Act 2015 (2015 No 70).

Right of employees to refuse to perform work likely to cause serious harm

Heading: inserted, on 5 May 2003, by section 17 of the Health and Safety in Employment Amendment Act 2002 (2002 No 86).

28A Employees may refuse to perform work likely to cause serious harm

(1)

An employee may refuse to do work if the employee believes that the work that the employee is required to perform is likely to cause serious harm to him or her.

(2)

An employee who, under subsection (1), is refusing to do work may continue to refuse to do the work if—

(a)

the employee attempts to resolve the matter with the employer as soon as practicable after first refusing to do the work; and

(b)

the matter is not resolved; and

(c)

the employee believes on reasonable grounds that the work is likely to cause serious harm to him or her.

(3)

Without limiting subsection (2)(c), reasonable grounds exist for the purpose of that paragraph if a health and safety representative has advised the employee that the work that the employee is required to perform is likely to cause serious harm to the employee.

(4)

A health and safety representative must not give advice under subsection (3) unless he or she has reasonable grounds for believing that the work that the employee is required to perform is likely to cause serious harm to the employee.

(5)

An employee may not refuse to do work that, because of its nature, inherently or usually carries an understood risk of serious harm unless the risk has materially increased beyond the understood risk.

(6)

An employee who refuses to do work must do any other work within the scope of the employee’s employment agreement that the employer reasonably requests.

(7)

This section does not limit an employee’s right to refuse to do work under another enactment or the general law.

(8)

To avoid doubt—

(a)

in situations to which this section applies, the employer, employee, and health and safety representative must deal with each other in good faith; and

(b)

a question about the application of this section to a particular situation is an employment relationship problem for the purposes of the Employment Relations Act 2000.

(9)

Subsection (8)(b) does not apply to members of the Armed Forces.

Section 28A: inserted, on 5 May 2003, by section 17 of the Health and Safety in Employment Amendment Act 2002 (2002 No 86).