Consultation with employees

1. Consultation with employees • Duties to consult • appointment and rights of employee representatives • safety committees

2. HSWA 1974 and Consultation • HSWA 1974 (S2(4)) provides for regulations to be made to allow recognised trade unions to appoint safety representatives to consult with employer • HSWA 1974 (S2(7)) provides that in prescribed cases employer must set up safety committee having function of keeping under review measures taken to ensure health and safety at work when requested by safety representatives

3. The Safety Representatives and Safety Committees Regulations 1977 (SRSCR) • Regulations, Approved Code of Practice and Guidance • Apply to organisations having recognised trade unions for collective bargaining purposes • recognised trade unions may appoint safety representatives from workforce and inform employer in writing

4. SRSCR 1977: functions of safety representatives • represent employees in consultation with employer • investigate potential hazards, dangerous occurrences and accidents • investigate complaints by fellow employees • make representations to employer on health and safety • carry out inspections • represent colleagues in consultation with enforcement authorities • receive information from inspectors: HSWA 1974, S 28(8) • attend safety committee meetings

5. SRSCR 1977: functions of safety representatives (cont) • allowed to inspect workplace at least once every 3 months or sooner if substantial changes have taken place • must be allowed time off with pay to exercise functions and to undergo appropriate training • where two, or more, safety representatives request in writing the setting up of a safety committee the employer must do so within 3 months

6. SRSCR 1977: general duty to consult • HSWA 1974 (S2(6)) requires employer to consult safety representatives ‘with a view to the making and maintenance of arrangements which will enable him and his employees to co-operate effectively in promoting and developing measures to ensure the health and safety of employees, and in checking the effectiveness of such measures’

7. SRSCR 1977: duty to consult (cont) Employer must specifically consult concerning: • introduction of measures or change which may substantially affect health and safety • arrangements for appointment of competent persons to help comply with health and safety law • health and safety information required to be given to employees • planning and organisation of health and safety training required by law • health and safety consequences of introduction of new technologies

8. SRSCR 1977: restrictions on provision of information Employer must provide reps with information to enable them to fulfil their functions except where: • it could endanger national security • it is against a legal prohibition • it relates to an individual (unless they consent) • it could substantially harm the business • it was obtained for bringing or defending legal proceedings

9. SRSCS: Health and Safety Committees • Employer must form a health and safety committee within three months if two or more safety representatives request in writing • General function: keeping under review the the measures taken to ensure the health and safety at work of employees

10. Health and Safety Committees Specific functions include: • Study of injury and disease statistics so that appropriate reports can be given to managers • Examination of safety inspection and audit reports • Consideration of reports from external agencies • Consideration of reports submitted by safety reps • Assistance in the development of works safety rules etc • Reviewing the impact of new legislation and guidance on the organisation • Monitoring and reviewing adequacy of health and safety training

11. The Health and Safety (Consultation with Employees) Regulations 1996: (HSCER) Introduced following EC Directive 89/391/EEC (Framework Directive) which contained a requirement for workpeople, whether represented by a trade union or not, about matters concerning their health and safety at work. Regulations and Guidance UK Government argued that existing SRSC covered the requirements of the Directive but European Court of Justice established right of all workpeople to be consulted

12. HSCER: Information v Consultation Guidance to Regulations emphasises difference between informing and consulting: • Informing: providing information about health and safety issues: commonly required by statutory provisions • Consulting: listening to, and taking into account, the views of employees before taking decisions about health and safety matters

13. HSCER: Main Provisions Require consultation with employees in organisations that have no recognised trade unions concerning health and safety matters. Duty to provide relevant information and restrictions on disclosure similar to SRSCR 1977 Employees required to be consulted: • on an individual basis or, • through representatives elected by the workforce (Representatives of Employee Safety (RoES))

14. HSCER: functions of RoES • To take up employees concerns about possible risks and dangerous events that may affect their constituents • to take up with employers general matters affecting their constituents • to represent the employees who elected them in consultation with health and safety inspectors

15. HSCER: Training and Time Off with Pay • RoES must be given reasonable training in respect of functions - employer to meet costs • RoES to be given reasonable time off with pay to perform functions during working hours and provided with other facilities and assistance that may reasonably required

16. SRSCR/HSCER: Enforcement • Regulations enforced by inspectors but normally only as a last resort • Disputes concerning appropriate numbers of safety reps or RoES, refusal to allow time off for training, disclosure of information, etc treated initially as industrial relations issues and dealt with by reference to ACAS or an industrial tribunal • Employees must not suffer detriment concerning anything reasonable they do in connection with health and safety consultation - protected against detriment and unfair dismissal by Employment Rights Act 1996 which can be taken to an industrial tribunal

17. NEBOSH national General Certificate Unit 2: Policy

18. Report of Robens Committee: 1972 (paras 72-74) ‘We have no doubt that the existence of a clear and explicit statement of a firm’s policy and arrangements for safety and health can be of genuine practical value* -------- it should be a legal obligation on all employers employing more than a specified number of workpeople to set out their safety and health policy and rules in writing and to make such statements available to all employees’ *In Feb 1972 the CBI and TUC recorded in a joint statement that in their view ‘a clear written statement of a company’s safety policy is an essential foundation-stone for any effective safety organisation’

19. HSWA 1974: Section 2(3) Absolute duty of every employer, with five or more employees, to prepare and as often as appropriate revise a written statement of: • general policy with respect to health and safety at work of employees and, • the organisation and arrangements for the time being in force for carrying out the policy (overlap with MHSW Regs 1999: Reg 5) Also to bring the statement and any revision to the notice of all employees

20. Health and safety policy: key elements • General statement of health and safety policy • Organisation for health and safety • Arrangements for health and safety

21. General statement • Aims: in general largely unaffected by subsequent policy revisions • Objectives: measurable and may change at revision • Commitment to provide adequate resources • Signed and dated by most senior person • Brought to attention of all employees

22. Organisation for health and safety This section sets out the employers organisation for carrying into effect the general statement of intent including: • Line management e.g. directors, managers, supervisors • Specialists e.g. health and safety adviser, occupational nurse • Employee representatives e.g. safety reps, RoES

23. Organisation for health and safety: key functions Clear responsibilities need to be set out in relation to some key functions .e.g: • accident etc reporting and investigation(a line management function) • provision of information and training • health and safety planning, monitoring and audit • liaison with enforcement authorities • role of health and safety adviser • joint consultation

24. Arrangements for health and safety This part of the policy is concerned with the practical arrangements in force to contribute to overall policy implementation An arrangements section may be lengthy and detailed: often presented in the form of a manual with cross referencing to the policy and organisation sections

25. Arrangements for health and safety: typical contents • Terms of reference of health and safety committee • injury and ill-health reporting arrangements • procedures concerning health and safety of visitors and contractors • first aid arrangements • dealing with emergencies including fire precautions • conduct, recording and review of risk assessments • statutory inspections of plant and equipment • health screening e.g. pre-employment examinations, routine health surveillance, DSE user eye examinations

26. Revision of policy Policy revision is required as a matter of law (HSWA S2(3)) and to ensure a process of continuous development and improvement - key driving factors for revision include: • Time • Results of monitoring (proactive and reactive) • New legislation and guidance • Comparative performance with others in same or similar sectors of employment • Significant organisational changes • Introduction of new process and technologies

27. Health and safety policies: common failures • Window dressing • Lack of visible senior management involvement • Low ranking of health and safety in comparison with other business activities e.g. financial management, quality control • Inadequate resourcing to meet overall aims of policy • Poor management accountability - someone else's problem • Excessive emphasis on employee responsibilities • Inadequate communication