A20: The Health And Safety (Consultation With Employees) Regulations 1996

Application

These regulations apply to all employers and employees in Great Britain other than those employees who are covered by safety representative(s) appointed by recognised trade union(s) under the SRSC Regulations (see Summary Sheet A2). (When appointing recognised union representatives, the union must notify you in writing of the group or groups of employees they represent. You may need to check whether the trade union safety representative(s) do indeed cover all of the employees or not.)

Employer’s duty(r3)

Employers shall consult employees (who are not represented by safety representatives under the SRSC regulations) in good time regarding:

the introduction of any measures which may substantially affect their H&S
the arrangements for appointing or nominating competent persons (MHSWR r6,7)
any H&S information to be provided to employees
the planning and organisation of any training for employees

H&S consequences of introducing new technology. Consultation involves listening to employees’ views and taking account of what they say before making a decision.

Persons to be consulted(r4)

Employers may consult with either:

the employees directly; or
for any group of employees, one or more people who have been elected by the group to represent them (known as ‘Representatives of Employee Safety’ (RoES)).

Employers are required to inform the employees represented of

the names of the representatives; and
the group of employees whom they represent.

Employers shall not consult a person as a RoES if

they do not wish to represent the group for such consultation
they have ceased to be employed in the group which they represent
the period for which they were elected has expired
they have become incapacitated from carrying out their functions under these regulations.

If you decide to consult via elected representatives but no candidates come forward for election, then you will have to consult directly. If only one candidate is nominated for a vacancy then there would be no need to hold a formal election.

Information(r5)

Employers shall make available health and safety information within the employer’s knowledge which is necessary for employees (or RoES) to participate fully in consultations and for RoES to carry out their functions. For RoES this includes records required by RIDDOR ’95 (see Summary Sheet A18) which relate to the workplace or the represented group of employees. However, the employer is not required to make available any information which –

could endanger national security
could infringe commercial security
relates to an individual, unless they have consented
relates to legal proceedings
is prohibited from being disclosed.

Functions(r6)

For RoES these include –

making representations to the employer on hazards and dangerous occurrences or general H&S matters which affect or could affect the group of employees they represent
representing the group of employees in consultations at the workplace with authorised health and safety inspectors (HSE).

Training, time off and facilities(r7)

Where an employer consults RoES he shall (in order that they may carry out their functions):

ensure that each RoES is provided with reasonable training; and
permit each RoES (or RoES candidate standing for election) to take time off with pay; and
provide other facilities and assistance that a RoES may reasonably require.

Civil liability(r10)

Breach of any of these regulations (whilst an offence) does not confer any right of civil action.

Complaints(sch 2)

A RoES can complain to an Industrial Tribunal if they believe their employer has failed either to permit time off or to pay them for time off to perform functions or to undergo training.

Election arrangements

Constituencies

Any elected RoES must be employed in the group (constituency) which elects them. This is not defined and may cover multiple sites requiring travel to consult mobile or dispersed constituents. There are no set rules for the frequency of elections. However, there may be benefits from giving an elected RoES time to develop experience to discharge the functions and responsibilities of the post (3-4 years). There is no reason why RoES should not also deal with other aspects of consultation providing this is clear to all those taking part in the election. Some employers also have non-union safety representatives who carry out accident investigation and sit on the formal safety committee.