Worker consultation – enforcement of Regulations
This Operational Guidance (OG) explains the actions available to inspectors to improve worker consultation in the workplace, including enforcement action under the Safety Representatives and Safety Committees Regulations 1977 (SRSCR 1977) and the Health and Safety (Consultation with Employees) Regulations 1996 HSCER 1996). It replaces the Worker Consultation and Involvement, Enforcement of Consultation Regulations Topic Pack (June 2011).
Consulting workers is an important part of managing health and safety in the workplace.
Evidence suggests that accident rates in workplaces where employees genuinely feel they have a say in health and safety matters are approximately half of those in workplaces where employees are not involved *.
Effective consultation leads to:
- greater recognition and understanding of workplace risks;
- pragmatic health and safety controls (by including input and experience from those actually 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 (more common in small businesses) as well as formal arrangements. Where trade unions are not recognised, employers may choose to consult the workforce directly rather than through a Representative of Employee Safety (RoES).
* Source: HSE Fit3 (Fit for Work, Fit for Life, Fit for Tomorrow) employer and employee surveys 2005/06 and Nichols T, Walters D and Tasiran AC (2007) Journal of Industrial Relations; 49: 211-225
At interventions, inspectors should
- follow the Operational Guidance on contacting and communicating with elected or appointed representatives at visits [this is currently "Additional guidance" in the Inspection Procedure, which is under revision and will be converted to OG]
- look for evidence of how well consultation arrangements are working in the context of the primary purpose of the visit and the risk control systems under scrutiny
- enquire further into consultation arrangements when they identify symptoms of potential non-compliance, for example:
- employees don't know who to go to with health, safety or welfare concerns
- changes affecting health and safety have taken place without discussion with employees
- managers have not responded to requests to rectify issues that matter to employees, including basics such as welfare and working conditions
- representatives are more concerned about their rights and the consultation processes than actual health and safety conditions
- note the guidance on enforcement in Appendix 1
- be aware that Fee For Intervention applies in relation to the Safety Representatives and Safety Committees Regulations but not to the Health and Safety (Consultation with Employees) Regulations 1996 because they are not a relevant statutory provision
- avoid being drawn into industrial relations disputes because these should be settled through the normal machinery for resolving industrial relations problems, with recourse to the Advisory, Conciliation and Arbitration Service (Acas).
All concerns received about non-compliance with the worker consultation requirements should be dealt with according to the Concerns Handling Procedure (The Procedure is currently in revision).
The principal requirements for employees to be consulted are contained in:
- The Safety Representatives and Safety Committees Regulations 1977 (as amended), regulation 4A(1) which apply to undertakings where trade unions are recognised for collective bargaining purposes
- The Health and Safety (Consultation with Employees) Regulations 1996 (as amended), regulations 3 and 4 which apply where trade unions are not recognised and allow employers to consult the workforce directly or through an elected representative.
The following also relate to employee consultation:
- Offshore Installations (Safety Representatives and Safety Committees Regulations 1989;
- Quarries Regulations 1999, regulation 40
- Construction (Design and Management) Regulations 2015, regulation 14
[The Mines & Quarries Act 1954 has been replaced by the Mines Regulations 2014, and is therefore excluded (re s 123). Mines legislation will rely on the SRSCR]
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.
Both sets of Regulations require employers to provide relevant information to representatives or the workforce to enable effective consultation.
No specific organisational requirements.
FOD Legal and Enforcement Team.