Safety first: UK employment rights of health and safety representatives

Dentons

Health and safety representatives have important functions to protect and promote employee safety in the workplace. The undeniable benefit of having health and safety representatives is that they know the workplace and can see the important safety issues that affect employees. The law recognises the importance of their role and so offers them specific rights and protections, which largely revolve around consultation with employers. Health and safety representatives can be either:

  • appointed by a trade union (in which case their functions are set out in the Safety Representatives and Safety Committees Regulations 1977); or 
  • a representative of employee safety (in which case their functions are set out in the Health and Safety (Consultation with Employees) Regulations 1996).

A trade union recognised by the employer for collective bargaining purposes is entitled to appoint safety representatives, who must be informed and consulted by the employer over health and safety matters. Where there are no union safety representatives, the employees may elect employee safety representatives to consult with the employer. In this case the employer will need to organise elections for their employees to elect representatives and will need to ensure the elections are fair and open. The number of representatives that need to be elected depends on the size of the employer. Larger employers may have a number of business areas or constituencies each requiring a representative. Smaller employers may have fewer representatives or one for the whole workforce.

Health and safety representatives have the right to:

  • take an active part in workplace risk assessments;
  • investigate potential hazards and "dangerous occurrences", and examine the accident book;
  • investigate complaints made by colleagues; 
  • carry out inspections of the workplace in work time, at least every three months;
  • require their employer to set up and attend a safety committee;
  • be consulted on new working practices and new technology;
  • receive safety information from employers;
  • attend training courses without loss of pay; and
  • not suffer detriment or be dismissed as a result of performing their duties.

Do representatives have to be paid? 

Generally, trade union representatives do not need to be remunerated for simply being a representative, but the right to be paid arises in respect of the right to paid time off. However, for duties carried out during work time, representatives will be paid their normal wage anyway. Both trade union appointed representatives and employee representatives are entitled to paid time off to fulfil their roles as safety representatives and to receive training. Employees are also permitted to take paid time off to stand for election as a representative. Safety representatives are entitled to paid time off for as long as is necessary to fulfil their functions. They have the right to paid time off to attend as much training as is reasonable.

How much should representatives be paid?

Representatives are entitled to be paid at their normal rate during the time off. Where pay varies with the amount of work done, the Safety Representatives and Safety Committees Regulations 1977 for trade union representatives and Health and Safety (Consultation with Employees) Regulations 1996 for employee appointed representatives provides for a method of calculating average earnings for that period. The methods differ slightly depending on which right is being exercised.

What legal risks must employers be aware of?

Employee representatives may bring claims for a failure to allow time off or to pay for such time off. Claims have the usual statutory time limit for employment tribunals and must generally be brought within three months of the relevant failure to allow time off or pay. Representatives also have the right not to suffer detriment or dismissal where they performed or proposed to perform any of the functions related to that post. In addition, any dismissal due to the employee having performed such functions is automatically unfair. 

In summary, employers should encourage, support and protect the role of health and safety representatives in their workplace, thereby creating a safer working environment. This is particularly relevant during the COVID-19 pandemic when risks in the workplace are heightened. There is no doubt employees will have concerns about returning to work. Having representatives may ease the transition and increase employee confidence as they someone they can go to, designated to listen to their concerns, and who has the ability to request and push for changes. The collaborative approach can really make a difference and allows a successful safety culture to develop. It also promotes a positive reporting system whereby employees feel they have a safe space in which to raise their health and safety concerns.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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