Employee representation and consultation Regulations

The two main sets of Regulations are the Safety Representatives and Safety Committee Regulations 19771 and the Health and Safety (Consultation with Employees) Regulations 1996.2

They have been modified by:

  • the Management of Health and Safety at Work Regulations 1999 (SI 1999 No.3242).

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    The 1977 Regulations have been amended by:

  • the Management of Health and Safety at Work Regulations 1992 (SI 1992 No.2051)

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  • the Health and Safety (Consultation with Employees) Regulations 1996 (SI 1996 No.1513)

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  • the Fire Precautions (Workplace) Regulations 1997 (SI 1997 No.1840)

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  • the Police (Health and Safety) Regulations 1997 (SI 1999 No.860)

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  • sections 1(1) and (2) of the Employment Rights (Dispute Resolution) Act 1998

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    An employer has a duty under the HSW Act to consult with appointed safety representatives on health and safety matters. The Safety Representatives and Safety Committee Regulations 1977 (SRSC Regulations) detail the rights of these representatives and give specific examples of an employer's duty to consult. The power to appoint safety representatives is limited to unions that an employer chooses to recognise - recognition is defined as recognition by an employer to any extent for the purposes of collective bargaining.

    Following the decision in EC Commission v UK3 it became clear that the SRSC Regulations did not implement the provisions on consultation in the Framework Directive (89/391/EEC) and individual Directives made under it. As a result, the Government introduced the Health and Safety (Consultation with Employees) Regulations 1996 (HSCE Regulations), extending an employer's duty to consult to cover employees whose union is not recognised or who do not have a union. The HSCE Regulations apply only to employees who are not represented under the SRSC Regulations, but employers may be obliged to consult under both sets of Regulations.

    In November 1999, the HSE issued a discussion document on the future of employee consultation and involvement in health and safety. This produced around 800 responses, which the HSE is analysing. The results of this analysis are likely to be presented to the HSC in the summer.

    The Offshore Installations (Safety Representatives & Safety Committee) Regulations 1989, the Mines and Quarries Act 1954, and the Construction (Design and Management) Regulations 1994 also contain consultative provisions.

    Neither the SRSC nor the HSCE Regulations have been the subject of notable enforcement action.

    Duty-holders

    Employers

    Groups to be consulted

    Employers must consult with trade-union appointed "safety representatives" on issues that affect the group of employees represented (SRSC Regulations). Where the SRSC Regulations do not apply, an employer must consult with either the employees directly, or an elected "representative of employee safety" (RES) for any group of employees (HSCE Regulations).

    Details of consultation

    Employers must consult "in good time" with employees on: the introduction of any workplace measure that may substantially affect their health and safety; the arrangements for nominating or appointing persons to assist with health and safety generally and in implementing procedures to deal with serious and imminent danger, including fire; any health and safety information, or the planning and organisation of any training, an employer is legally required to provide; and on the health and safety consequences of the introduction of new technologies.

    Appointment procedure

    A recognised trade union can appoint safety representatives from amongst the employees and must notify the employer of the appointment in writing. Appointees must, so far as is reasonably practicable, have been employed by the employer for the preceding two years or have equivalent experience in similar employment. The appointments cease when the trade union informs the employer in writing, or the representative resigns or ceases to be an employee.

    An employer that consults RESs under the HSCE Regulations must tell the employees who the representatives are and who they represent. An employer cannot consult with an RES who has said they do not intend to represent the group of employees in the consultation; who has ceased to be an employee in the represented group; whose elected period of representation has finished; or who is incapacitated and unable to carry out their functions as a representative.

    Provision of information

    Under the SRSC Regulations, safety representatives may inspect statutory records relevant to the workplace and employees represented, but not individual health records unless the person concerned has given permission. Employers can, in specific circumstances, withhold information.

    Under the HSCE Regulations, employers must, either directly or through RESs, provide information the employees need to participate fully in consultation. Where an employer consults RESs it must make available to those representatives the records kept under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995.

    Provision of training, time off and facilities

    Employers must allow safety representatives and RESs paid time-off in their working hours to perform their functions and receive relevant training, and must provide the facilities and assistance needed for them to carry out their functions. A representative can complain to an employment tribunal if an employer fails to meet these obligations.

    Candidates for election as an RES must also be allowed paid time off to perform their functions as candidates.

    Functions of representatives

    The function of RESs is to make representations to the employer on potential hazards and dangerous occurrences that affect the group represented.

    The function of safety representatives is: to represent employees in consultations to maintain and improve the health and safety at work of those employees; to investigate potential hazards, dangerous occurrences and causes of accidents in the workplace; to investigate complaints from employees represented relating to their health, safety or welfare at work; to represent employees in meetings with enforcing authority inspectors and to receive information from them; and to attend meetings of the safety committee.

    Safety committees

    If two safety representatives write to an employer asking it to establish a safety committee, it must do so within three months.

    Representatives' duties

    No duties are imposed on safety representatives or RESs by these Regulations.

    Liability

    Criminal and civil, although a civil claim is improbable because no damage is likely to be suffered.

    Exclusions

    Employment on sea-going ships (HSCE Regulations).

    1SI 1977 No.500. The Regulations and guidance on compliance are contained in "Safety representatives and safety committees", L87, HSE Books, ISBN 0 7176 1220 1, £5.75.

    2SI 1996 No.1513. The Regulations and guidance on compliance are contained in "A guide to the Health and Safety (Consultation with Employees) Regulations 1996", L95, HSE Books, ISBN 0 7176 1234 1, £8.

    31994 [IRLR] 392 and 412.