LTB 611/16 – Health and Safety Legal Obligations

No. 611/2016

18 October 2016

Our Ref: EX10/16

Health and Safety Legal Obligations on Employers to Work with Union Health and Safety Reps: The Law at a Glance: Safety Reps & Branch Guide

To: All Branches

Dear Colleagues,

Further to LTB 480/16 Health and Safety At Work – The Law At A Glance Guide on Health and Safety Law in General for Branches and Safety Reps, this is a second guide, this time specifically on employers Health and Safety obligations to work with Trade Union Health and Safety Reps, in a summary format.

Introduction

There are significant legal requirements for employers to work with trade union health and safety reps – who perform vital work.

Choosing safety reps

The main legislation dealing with safety reps is the Safety Representatives and Safety Committees Regulations 1977 (SRSC). An employer is only obliged to have safety reps where they are appointed by a recognised trade union (reg.3(1) SRSC) and the trade union has notified the employer in writing (reg.3(2)).

The rep must have, so far as is reasonably practicable, been employed by the employer in the preceding two years or had at least two years’ experience in similar employment (reg.3(4)). There is no set number of reps but this is a matter for agreement between the union and the employer. The CWU has National Agreements with all Major Employers covering such Representation and Consultation Agreements.

The Health and Safety (Consultation with Employees) Regulations apply where there is no recognised trade union. This Guide only deals with union safety reps under the HSAW Act 1974 and SRSC Regulations 1977.

Consultation duty on employers

Employers must consult safety reps to make arrangements for employer and employees to “cooperate effectively in promoting and developing measures to ensure the health and safety at work of employees, and in checking the effectiveness of such measures” (Section 2(6) of the Health and Safety at Work etc. Act 1974 (HSWA)).

Safety reps themselves have an obligation to represent employees in consultation with their employers (s.2(4) HSWA). The HSE’s Consulting workers on health and safety, approved code of practice (ACoP) says that to fulfil s.2(4) HSWA functions reps should:

  • bring to the employer’s notice, normally in writing, any unsafe or unhealthy conditions (although this does not rule out doing so orally).
  • encourage cooperation between their employer and his employees.
  • take all reasonably practicable steps to keep themselves informed.

Employers do not have to follow ACoPs but if prosecuted they must be able to persuade the court that alternative measures followed were sufficient to comply with the law.

Under reg.4A SRSC employers must consult safety reps in good time about measures including:

  • the introduction of any measure at the workplace that may substantially affect the health and safety of the employees the reps represent (reg.4A(a)).
  • health and safety information the employer must provide to safety reps under relevant statutory provisions (reg.4A(c)).
  • the health and safety consequences for the employees the reps represents of the introduction of new technologies into the workplace (reg.4A(e)).

Although “good time” is undefined by the SRSC Regs, the ACoP says that before making decisions involving work equipment, processes or organisation that could have health and safety consequences for employees, employers must allow time to:

  • provide reps with information about what they are proposing.
  • give reps the opportunity to express their views in light of that information.
  • take account of any response.

Paid Time Off

Employers must give safety reps time off with pay during working hours as necessary to represent the employees in consultations with the employer (reg.4(2)(a) SRSC). Employers must provide facilities and assistance as safety reps may reasonably require to carry out their functions under s.2(4) HSWA and the SRSC.

Employers must also give reps paid time off to:

  • investigate potential hazards and dangerous occurrences at the workplace and examine the causes of accidents (reg.4(1)(a)).
  • investigate complaints by any employee relating to that employee’s health, safety or welfare at work (reg.4(1)(b)).
  • make representations to the employer on the investigations listed above (reg. 4(1)(c)) and on general matters affecting the health,

safety or welfare at work of the employees at the workplace (reg.4(1)(d)).

  • carry out inspections (see below) (reg. 4(1)(e)).
  • represent the employees they are appointed to represent in consultations at the workplace with Health and Safety Executive (HSE) inspectors or any other enforcing authority (for instance local authority inspectors) (reg.4(1)(f)).
  • receive information from inspectors in line with s.28(8) HSWA, which requires inspectors to provide reps with information to keep them adequately informed about health and safety and welfare (reg.4(1)(g)).
  • attend safety committee meetings in their capacity as safety reps in connection with these functions.

(Note: These are Legal Rights for Safety Reps and NOT Legal Duties similar to the Legal general duties for all employees imposed by sections 7-8 of the HSWA – for which an individual can be prosecuted).

Safety Reps must also be given time off for training in aspects of their functions “as may be reasonable in all the circumstances” considering any HSE ACoP relating to time off for training (reg.4(2(b)). The ACoP says safety reps should be given time off as soon as possible for basic training.

The Union should inform management of any course it has approved for Safety Reps training and supply a copy of the syllabus, normally giving at least a few weeks’ notice of the safety reps nominated for attendance. The Employer should then provide paid time off for the Safety Rep to attend.

InRama -v- South West Trains[CO/ 310/96] the Queen’s Bench Division dealt with a claim from a safety rep who was not allowed paid time off to attend a safety reps course. He attended in his own time and brought a claim that he should have been paid. The court held that the correct question was whether the training was reasonable to fulfil safety rep duties, not whether it was necessary. Judge Forbes held: That training which is necessary to perform the functions set out in reg.4 is likely to form a significant part of any training in aspects of those functions as may be reasonable in all the circumstances and in my judgment, necessity is not necessarily determinative of all aspects of reasonableness for these purposes and each case must be decided by reference to its own facts.”

The majority of the case law deals with time off for training. The ACoP says that regulation 4(2) SRSC requires employers to allow health and safety representatives paid time as is necessary for training in aspects of their functions that is “reasonable in all the circumstances”.

It goes on: “The important point is that whatis reasonable in all the circumstances is not always just what is necessary. Training does not have to be the necessary bare minimum to fulfil the safety representatives’ functions but it does have to be reasonable in all the circumstances (what must be necessary is time off with pay)”.

Inspections
Safety reps have the right to inspect the workplace, or any part of it, if they have not inspected it in the previous three months and they give reasonable notice to the employer (reg.5(1)). This can be done sooner than three months if there has been a substantial c
hange

in the conditions of work (reg.5(2)).

The ACoP says that:

  • Safety Reps should record their inspections and give a form to the employer; if reps make a report and remedial action is not taken the employer should say why in writing. Safety Reps can carry our re-inspections to check on remedial action progress.
  • Where possible the employer and the safety reps should plan a programme of formal inspections in advance.

Safety reps may also carry out inspections following a complaint, new health and safety information, a notifiable accident, or dangerous occurrence or notifiable disease if it is safe to do so and the interests of the union members might be involved (reg.6(1)). Safety reps also have the right, on reasonable notice, to inspect and take copies of any document relevant to the workplace or the union members that the employer has to keep by statutory provision with exceptions including documents concerning the health record of individuals (reg.7).

Safety Reps can speak to those they represent in private if required.

Health & Safety Committees
Employers are obliged to set up a safety committee to review consultation arrangements with reps under section 2(7) HSWA. This obligation is triggered where at least two safety reps make a written request to the employer to establish the committee (reg.9(1) SRSC). The structure of Health and Safety Committee is normally set out in National Agreements between the Union and Employer in large organisations, covering health and safety committees at for example, local, area, regional and national level.

The committee must be established within three months of the request (reg.9(2)(c)).

The Consulting workers on health and safety ACoP says that the committee’s objective should be the promotion of cooperation between employer and employees in instigating, developing and carrying out measures to ensure the health and safety at work of employees. Specific functions of the committee might include studying accidents to stop them happening again and considering reports of safety reps following inspections.

The ACoP says the committee may also be able to:

  • advise on appropriateness and adequacy of the rules of health and safety proposed by managers and consider improvements.
  • draw attention to a need to establish rules for particular hazardous work activity or class of operations.

Management representation on the health and committee should be aimed at ensuring:

  • adequate authority to give proper consideration to views and recommendations
  • the necessary knowledge and expertise to provide accurate information to the committee on company policy, production needs, and on technical matters in relation to premises, processes, plant, machinery and equipment.

Dates for health and safety committee meetings should be arranged in advance as far as possible, as much as six months or a year ahead, and there should be sufficient time during each meeting to ensure full discussion of all business.

Crucially, the ACoP adds that the work of the committee should not be a substitute for management arrangements for effective checks of health and safety precautions.

Safety Reps Powers and Enforcement
The SRSC Regulations give safety reps relatively wide powers. These can be enforced by HSE Inspectors. The ACoP says disagreements on interpretation of the regulations should be settled through the normal machinery for resolving employment relations problems and it may be appropriate to involve ACAS to assist. However, the HSE, or Local Authority depending on who has responsibility for the workplace, has the power to prosecute employers who fail to follow their safety obligations. Alternatively they can serve notices, that a situation be improved or ends, through improvement or prohibition notices (s.21/s.22 HSWA). The ACoP says health and safety inspectors can enforce for failure to comply with legal duties on procedural matters and will apply the HSE’s enforcement policy.

Safety Reps can bring a claim to an employment tribunal where:

  • time off has not been permitted to undertake their functions under reg.4(2) (reg.11(1)(a))
  • the employer has failed to pay him for time off in his function as a safety rep (reg.11(1) (b)).

In general, such complaints must be made within three months of the failure (reg.11(2)). A tribunal has the power to make a declaration that the complaint was well-founded and may award compensation to the employee (reg.11(3)). In cases involving a failure to pay for time off, a tribunal must order the employer to do so (reg.11(4)).

Conclusion

The CWU has a proud record of making full use of the relevant legislation and ensuring that the Union has well trained, knowledgeable health and safety reps, representing the Union’s membership.

Further reading

  • Attached pdf file version of ‘The TUC’s Safety Representatives and Safety CommitteesBrown Book 2015 Version”.

Yours sincerely

Dave Joyce

National Health, Safety & Environment Officer