Safety representatives possess an impressive array of legal rights, the most comprehensive of any trade union representative in the workplace. These rights are described in the Health and Safety Executive’s (HSE) "brown book" (Safety Representatives and Safety Committees, 3rd Edition, 1996) and are derived from the Safety Representatives and Safety Committees Regulations 1977 (SRSCR).The brown book contains the regulations, approved code of practice (ACOP) and guidance on the regulations, including the rights of safety reps’ and employer obligations. Copies can be obtained from the HSE at a cost of £5.75 per publication.
The main provisions of the SRSC are:
According to the SRSC (regulation 3) the entitlement to appoint safety reps is the prerogative of independent trade unions which enjoy employer recognition. Regulation 3 imposes the following conditions:
Where "reasonably practicable" a safety rep should have a minimum of two years’ employment with their current employer or at least two years "experience in similar employment".
If an employer recognises a union for other purposes but declines to recognise a safety rep, the rep should, in the first instance, inform his or her union, as the employer are ignoring their legal obligations under the SRSC regulations. An employer must be notified in writing of the names of the union appointed safety reps. The regulations do not stipulate the precise number of safety reps that should be appointed, leaving this to negotiation between unions and employers, but the brown book does offer "appropriate criteria":
Safety reps may seek advice from the Employment Medical Advisory Service (EMAS) under section 55 of the Health and Safety at Work Act (HSWA). EMAS employs full time medical staff, within the remit of the HSE, and local offices can advise on occupational health issues.
Regulation 7 states that "appointed safety representatives will need to be given information and knowledge over and above that necessary for employees generally to enable them to play an informed part in promoting health and safety at work".
Safety reps are also entitled to receive information from HSE inspectors and local authority environmental health officers (EHOs) during their work site visits.
The approved code of practice (ACOP) to the SRSC describes the type of information an employer should divulge to safety reps. Included are:
The employer is exempt from the obligation to disclose information in the following circumstances:
If an employer fails to make specific information available or denies certain facilities to a safety rep, the rep should, in the first instance, inform his or her union as an HSE inspector could issue an improvement notice.
SRSC regulation 5 requires employers to "provide such facilities and assistance as the safety representatives may reasonably require (including facilities for independent investigation by them and private discussion with the employees)" during formal inspections.
The TUC advocate that the facilities recommended in the ACAS Code of Practice on time off for trade union duties and activities should apply to safety reps. Included are:
The regulations also permit safety reps the right to the necessary paid time off work to perform their safety duties and to attend TUC or union training courses. It also advises that reps should attend a course as soon as possible after their appointment.
Regulation 4 exempts safety reps from any legal liability when discharging their safety functions. The Trade Union Reform and Employment Rights Act 1993 enhanced the position of safety reps (and employees) by granting them protection if they are unfairly treated or suffer a detriment because they:
This protection is applicable irrespective of length of service or hours of work. Claims can be heard in an employment Tribunal. Although the law does not require tribunals to reinstate workers who have been dismissed following a health and safety dispute, safety reps should always request reinstatement, as successful compensation awards will be greater if the employer declines.
An employer is obliged to establish a safety committee within three months of a written request from at least two safety reps. When establishing a committee, an employer has a duty:
To post a prominent notice stating the composition of the committee and the work locations it is responsible for.
The HSE has recommended basic objectives for the operation of safety committees, and these include:
Remember that the HSE state clearly that the function of a safety committee, just like the role of a safety rep, is to monitor the health and safety performance of the employer and both roles are not intended to exonerate an employer from his statutory duties. "It is management’s responsibility to take executive action and to have adequate arrangements for regular and effective checking of health and safety precautions and for ensuring that the declared health and safety policy is being fulfilled. The work of safety committees should supplement these arrangements; it cannot be a substitute for them."
There are three situations where an HSE inspector may intervene in disputes involving safety reps:
i. Where an employer fails to accept the appointment of a safety rep by a recognised trade union.
ii. Where an employer fails to provide adequate information and facilities.
iii. Where an employer ignores the request to discuss the establishment of a safety committee with the trade union following a written request from two safety reps.
Although an employer has an obligation to listen to and consult safety reps, there is no legal mechanism available to compel an employer to implement safety rep’s recommendations.
Employers under the Health and Safety (Consultation with Employees) Regulations 1996 must consult any employees not within groups covered by trade union safety reps. The employer has the choice of consulting directly with the employees or through elected representatives. If representatives are to be elected, the employer has to make arrangements for the election of representatives of employee safety (ROES). ROES are the representatives elected by the constituency of employees with whom they work.
Trade union members are eligible to contest elections and can represent a workforce, even if the union is not recognised. The regulations permit unions the opportunity to increase recruitment by demonstrating that union members are most effective representatives of the workforce.
Rights to time off, training and protection from harassment are basically the same for safety reps and ROES, but ROES do not possess the rights to inspect or to establish a safety committee. An employer has a duty to consult employees on matters regarding health and safety at work, including:
SRSC Regulation 4 - These investigations can be conducted at any time, although it is good practice to notify the employer when and why. Safety reps have the right to investigate:
SRSC Regulation 5- The formal inspections of designated work-place areas can be conducted at least once every three months.
SRSC Regulation 5 - After a "substantial change(s)" in working conditions.
SRSC Regulation 6 - After a notifiable accident, dangerous occurrence or disease.
SRSC Regulation 5 - After the HSE has published new information relevant to the hazards in the workplace.
SRSC Regulation 7 - Relevant documents held by the employer, such as accident statistics and records of monitoring, technical information, information from supplier’s etc.
SRSC Regulation 4 - Investigate safety concerns raised by members.
SRSC Regulation 5(3) - Meet privately with members during inspections and after accidents.
SRSC Guidance Note 12 - Keep members continuously informed of health & safety issues.
SRSC Guidance Note 23 - Publicise inspection results throughout the workplace.
TAKE UP ISSUES WITH EMPLOYERS
SRSC Regulation 4 - Make representation to the employer. SRSC Code of Practice 5(c)- Provide notice of hazards, usually in writing.
SRSC Regulation 5(c)- Have access to the employer without delay.
SRSC Regulation 4 & 9- Request the formation of safety committees in most workplaces.
FACILITIES AND ASSISTANCE
SRSC Regulation 5(3) - Safety reps should have access to "facilities and assistance" to perform their safety functions.
SRSC Regulation 6(2)- Safety reps should have access to "facilities and assistance" to conduct post-accident investigations.
SRSC Regulation 4 - Safety reps are entitled to such reasonable time off with pay as "shall be necessary for the purposes of training."
PROVISION OF EMPLOYER INFORMATION
SRSC Code of Practice 6- Safety reps are entitled to have access to almost all documents relating to health and safety.
LIAISE WITH HEALTH & SAFETY INSPECTORS
SRSC Regulation 4 - Represent employees in consultations with enforcing authorities. HSWA section 28(8) - Receive information, including copies of letters and enforcement notices, from inspectors.