Employers have a legal responsibility to consult all of their employees on health and safety matters. Not only can this be very important in creating and maintaining a safe and healthy working environment and reducing the number of accidents and work-related illnesses, it can also result in more motivated employees. This month’s article discusses the law that applies to employers and how proper consultation can benefit your organisation.

The Law
The Health and Safety at Work etc. Act 1974 first outlined the rationale for employee consultation. Since then there have been further regulations which have expanded on this duty:

The Safety Representatives and Safety Committees Regulations (SRSCR) 1977 apply to employers who recognise a trade union and require that they consult with officially appointed safety representatives on matters concerning health and safety for those groups of employees they represent. The function of union appointed safety representatives is to:

• represent employees generally and when you consult them about specific matters that will affect the health, safety and welfare of the employees;
• represent employees when Health and Safety Inspectors from HSE or local authorities consult them;
• investigate accidents, near misses, and other potential hazards and dangerous occurrences in the workplace;
• investigate complaints made by an employee they represent about their health, safety or welfare in the workplace;
• present the findings of investigations to you;
• inspect the workplace;
• with at least one other appointed representative, request in writing that you set up a health and safety committee; and
• attend Health and Safety Committee meetings as a representative of your employees.

The Health and Safety (Consultation with Employees) Regulations (HSCER) 1996 allows any employees not in groups covered by trade union safety representatives to be consulted by their employers. The employer can choose to consult them directly or through elected representatives.

This legislation effectively gives elected representatives the following roles:

• to take up with employers concerns about possible risks and dangerous events in the workplace that may affect the employees they represent;
• to take up with employers general matters affecting the health and safety of employees they represent; and
• to represent the employees who elected them in consultations with health and safety inspectors.

Although by law health and safety representatives appointed by trade unions have more functions than representatives elected by employees, you can choose to give your elected representatives extra roles, as long as they agree to this.

Consultation
Consultation involves employers giving information to employees and listening to and taking account of their views before making any health and safety decisions. Consultation with employees must be carried out on matters to do with their health and safety at work, including:

• any change which may substantially affect their health and safety at work, for example in procedures, equipment or ways of working;
• the employer’s arrangements for getting competent people to help him or her satisfy health and safety laws;
• the information that employees must be given on the likely risks and dangers arising from their work, measures to reduce or get rid of these risks and what they should do if they have to deal with a risk or danger;
• the planning of health and safety training; and
• the health and safety consequences of introducing new technology.

Employees or their representatives must be given enough information to allow them to take a full and effective part in the consultation and they must have enough time to consider or express their views. You must take time to listen and consider their views before you make any decision.

Setting Up a Health & Safety Committee
When setting up a dedicated Health & Safety Committee, it is useful to agree with elected representatives:

• the principles of how it will work best so that it is clear for all employees and members of the committee;
• who the members will be;
• how often the committee will meet;
• what the committee will do;
• how you will make decisions and deal with disagreements; and
• what resources representatives will need as committee members.

Assistance and Training
Whether you recognise safety representatives under SRSCR or elected representatives under HSCER you must:

• make sure that they get the training they need to carry out their roles;
• give them the necessary time off with pay;
• pay for any reasonable costs to do with that training; and
• provide them with the appropriate help and facilities so they can carry out their role.

For safety representatives the trade union concerned will offer suitable training.

What Information Should Be Available?
You must give employees or their representatives enough information so that they can take part fully and effectively in the consultation. If you choose to, you can consult both the employees and their representatives about a particular issue. You don’t have to give information that you’re not aware of, or if:

• it would be against the interests of national security or against the law;
• it’s about someone who hasn’t given their permission for it to be given out;
• it would harm the business (other than for reasons of its effect on health and safety); or
• the information is connected to legal proceedings.

Statutory Protection
By law, you can’t dismiss or punish employees because they’ve taken part in health and safety consultations (whether as an individual or a representative). This includes if they become a candidate for health and safety representative or take part in voting. Any employee can apply to an Employment Tribunal if they feel they have been penalised for taking part in a consultation. Representatives who have not received the time off and pay they need to carry out their roles or be trained can also apply.

For further information about your duty to consult with your employees and how to establish a robust consultation process please contact your EW Health & Safety Consultant or call us at head office.