Contact with employee representatives by HSE field staff
This operational guidance explains the actions required by inspectors to contact relevant "appropriate representatives" during all visits, unless alternative contact agreements exist. It replaces the Inspection Operational Procedure, stage 3: Conduct inspection additional guidance on contact with employee representatives.
Consulting workers is fundamental to managing health and safety in the workplace and should usually be part of all interventions .
Effective consultation leads to:
- greater recognition and understanding of workplace risks;
- pragmatic health and safety controls (by including input and experience from a range of people including those doing the task);
- increased commitment to implementing decisions because employees have actively been involved in reaching them.
In the long term consultation can lead to greater co-operation, trust, joint problem solving and an improved health and safety culture.
Employers may consult their employees through informal as well as formal arrangements. Informal arrangements are likely to be found in small and micro sized organisations.
Where trade unions are not recognised, employers may choose to consult the workforce directly rather than through a Representative of Employee Safety (RoES).
During visits Inspectors should
- establish what consultation mechanisms are in place and assess the level of compliance with the relevant legislation
- encourage active workforce involvement in health and safety matters
- support the role of trade union safety representatives in forming and participating in safety committees
- where necessary remind employers of the requirement for them to consult their employees in good time, on issues that may affect their health and safety
- enquire further into consultation arrangements when you identify symptoms of potential non-compliance
Contacting appropriate representatives during visits
- representatives appointed or elected under the relevant regulations are the preferred route of communication with employees at visits. Where these do not exist you should, try to communicate with employees through another appropriate representative or contacting other employees directly
- where visits are made by appointment, appropriate representatives should be informed in advance and told the purpose of the visit
- whenever possible, appropriate representatives should be contacted at an early stage of the visit, to confirm its purpose and establish any concerns they may have
- where requested (or considered necessary) appropriate representatives should be given the opportunity to attend a private interview with you
- at premises that have more than one duty holder, eg contractors, you should make a judgement on the value of contacting the appropriate representatives (if any) of each duty holder
- if appropriate representatives are not available at the time of your visit, reasonable efforts should be made to contact them after the visit to discuss the significant results of the visit
- where joint visits are undertaken, the person who has the lead role for the premises is responsible for ensuring appropriate contact with employees
Agreeing specific communication arrangements with appropriate representatives
Any specific contact/communication arrangements that have been agreed with appropriate representatives should be recorded.
These could include:
- if you visit a particular workplace on a regular basis then contact arrangements between field staff and appropriate representatives can be agreed locally
- agreeing contact with a nominated lead appropriate representative where significant numbers are present
- making contact at suitable stages eg where a series of visits are planned
- special arrangements involving national contacts for multi-site duty holders
- for temporary circumstances such as the investigation of a major incident or substantial audit
The approach to enforcement of the consultation provisions should follow the guidance in the OG on Worker Consultation – enforcement of Regulations.
Concluding the visit
- you should discuss your findings and any follow up action with appropriate representatives directly where possible
- where appropriate, hold a joint open discussion with both senior management and appropriate representatives
- representatives should be encouraged to ensure issues identified following the visit are actioned eg checking progress at safety meetings
- where the actions / inactions of individual senior managers will be raised, Inspectors should ensure that discussions are held without the employee representatives
Disclosure of information
Subject to any restrictions imposed by legislation such as HSWA s28, SRSCR reg 7(2) or HSCER reg 5(3), any disclosure of information should take account of the following:
- provide as much information concerning employees' health and safety to appropriate representatives to enable them to fulfil their role effectively, subject to legislative constraints
- health and safety information confirmed in writing to an employer should also be provided to representatives
- if HSWA s28 restrictions apply to the information provided to the employer, a separate letter should be prepared for the appropriate representative
- for safety reports, safety cases and licensing applications, you should provide such factual information as you consider necessary to keep employees adequately informed about matters affecting their health and safety
- representatives should be informed of all enforcement action taken
- where legal proceedings (including Crown sanctions) have been approved and confirmed to the defendant, representatives should be informed giving the time, date and place of the hearing
- any information relating to monitoring or sampling in the workplace carried out by or for HSE should be provided to representatives, unless they relate to a specific individual who has not given their consent to their disclosure
- the names of representatives seen, trade union (if applicable) and method of contact should be recorded
The Health and Safety at Work etc. Act 1974 s.28(8) places a duty on Inspectors to provide factual information in circumstances where it is necessary to do so for the purposes assisting in keeping persons (or the representative of persons) employed at premises adequately informed about matters affecting their health, safety and welfare.
The requirements for employees to be consulted are contained in:
- The Safety Representatives and Safety Committees Regulations 1977 (as amended) (SRSCR)
- The Health and Safety (Consultation with Employees) Regulations 1996 (HSCER)
- Offshore Installations (Safety Representatives and Safety Committees) Regulations 1989
- Mines Regulations 2014
- Quarries regulations 1999
- Construction (Design and Management) Regulations 2015.
The law gives both elected and appointed safety representatives the right to represent the views of employees in consultations at the workplace with Inspectors.
In workplaces where some employees are members of recognised trade unions and others are not, consultation may be according to both SRSCR and HSCER. Trade union safety representatives may act for all workers, regardless of union membership / recognition.
No specific organisational requirements.
FOD Legal and Enforcement Team.