4. Safety reps and safety committees

Changes and developments since last year

• New cases on the protection of workers who “stop the job” in circumstances of “serious and imminent danger”.

• In December 2011, Labour MEPs secured an amendment to the European Parliament resolution on the mid-term of the European strategy 2007-2012 on health and safety at work to add a commitment to end blacklisting.

The Safety Representatives and Safety Committees Regulations 1977

The Safety Representatives and Safety Committees Regulations 1977 (SRSCR, SI 1977 No.500) give recognised trade unions the legal right to appoint workplace safety representatives. The regulations set out the rights and functions of safety reps, employers’ obligations with regard to consultation and the provision of facilities, assistance and information.

The TUC Safety Reps’ Charter estimates that there are currently around 150,000 safety reps appointed and supported by trade unions. Every year the TUC trains over 10,000, with many more trained by individual unions. The TUC argues that safety reps need more legal powers to continue their work, especially given the decline in enforcement and the rolling back of proactive inspections (see Chapter 2: Enforcement).

Appointing safety reps

The appointment of safety reps from recognised trade unions is provided for by section 2 of the Health and Safety at Work etc Act 1974. Under Regulation 3 of the SRSCR, the right to appoint safety reps is restricted to independent trade unions, recognised by the employer. Recognition is another way of saying that the employer is prepared to deal with the union concerned.

The regulations state that safety reps should be employees in the workplace where they are to carry out their functions, except where they are members of the Musicians’ Union or the actors’ union Equity. Local officials of these unions can cover a number of workplaces where they are recognised.

The regulations also state that where reasonably practicable, safety reps should have at least two years’ employment with their present employer or two years’ experience in similar employment. Exceptions to this include cases where the employer or the workplace is newly established, where the work is of a short duration, or where there is a high labour turnover.

The employer must be notified in writing of the names of the appointed safety reps by the union. The regulations do not say how many safety reps should be appointed, leaving this to negotiation between unions and employers.

Guidance notes to the regulations say that appropriate criteria when considering how many safety reps should be appointed include:

• the number of people employed;

• whether there are different occupations;

• the size of the workplace and variety of workplace locations;

• shift systems; and

• the kind of work and degree and character of the hazards.

The Brown Book

All reps should make sure they have a copy of the HSE publication: Consulting workers on health and safety (L146), known by its unofficial title, the Brown Book. This publication, updated in 2008, provides legal guidance to safety reps and contains the 1977 Safety Representatives and Safety Committee Regulations, the 1996 Health and Safety (Consultation with Employees) Regulations, the Approved Codes of Practice and extended guidance.

Safety reps’ functions

Safety representatives’ functions are set out in Regulations 4, 5 and 6. These are to:

• investigate potential hazards and dangerous occurrences and examine the causes of accidents;

• investigate members’ complaints;

• make representations to the employer;

• carry out inspections at least every three months and after a notifiable accident, dangerous occurrence or the contraction of a notifiable disease;

• consult with and receive information from HSE inspectors and other enforcement officers on behalf of members; and

• attend meetings of the safety committee.

Additional inspections can be made if work conditions have changed substantially, or if the HSE has published new information, provided the employer has been consulted.

Consultation

The Health and Safety at Work etc Act 1974 requires employers to consult with safety representatives (see Chapter 1). This requirement is strengthened by Regulation 4a of the SRSCR. This states that safety representatives should be consulted in good time about:

• the introduction of any measure at the workplace which may substantially affect health and safety;

• arrangements for appointing competent people to assist with health and safety and implementing procedures for serious and imminent risk;

• any health and safety information the employer is required to provide;

• planning and organisation of health and safety training; and

• the health and safety implications of the introduction (or planning) of any new technology.

The Code of Practice on the SRSCR (Brown Book, paragraph 29) states that to fulfil their statutory functions, safety reps should take all reasonably practical steps to keep themselves informed of:

• the legal requirements relating to health and safety at work, particularly those of the group of workers they directly represent

• the particular hazards in their workplace and measures to eliminate those risks; and

• the employer’s health and safety policy.

The Code says that safety reps should encourage cooperation between employer and workers to promote and develop measures to secure workplace health and safety and to check their effectiveness, and should bring to the employer’s notice, normally in writing, any unsafe or unhealthy conditions or working practices, or unsatisfactory arrangements for welfare at work which come to their attention “whether on an inspection or day to day observation”.

Facilities for reps

Employers must provide the “facilities and assistance” that safety reps reasonably need in order to carry out their functions. The TUC says that the facilities recommended in the revised Advisory, Conciliation and Arbitration Service (Acas) Code of Practice on time off for trade union duties and activities, 2010 should be made available to safety reps.

These facilities can include at least:

• access to means of communication such as a notice board, phone, email, intranet and internet;

• meeting facilities;

• a private place where a member facing a disciplinary charge or bringing a grievance can meet confidentially to discuss the situation;

• dedicated office space, if work volume requires this;

• access to members based at different locations;

• use of computer facilities, for example to access e-learning tools

in all the circumstances”.

The Code also directs readers to the HSE Code and guidance, Consulting workers on health and safety.

Government attacks on facility time

Facility time is a political issue under the current government, with attacks on facility time forming part of a more general assault on unions. In particular, in March 2012, the government announced plans for a consultation on facility time in the civil service.

The TUC published a briefing paper, The facts about facility time, in October 2011 which can be downloaded from the TUC website at: www.tuc.org.uk/tucfiles/108/TheFactsAboutFacilityTime.pdf.

The TUC has also updated its research on the “union effect” on health and safety: How unions make a difference to health and safety: the union effect, which can be downloaded at: www.tuc.org.uk/tucfiles/45/union_effect_2011.pdf

Safety reps’ legal rights to paid time off

Regulation 4(2) of the SCSCR says that all safety reps have the right to be paid for the necessary time off work to carry out their safety functions and to undergo union or TUC training courses. Paragraphs 32-35 of the SCSCR (Brown Book) contain guidance about the requirement to give paid time off to enable safety reps to train. It emphasises that the length of training required “cannot be rigidly prescribed”.

As well as training on the legal requirements of the role, the kinds of hazards in the particular workplace and measures to respond to them and the health and safety policy and practice of the employer, “safety reps will need to acquire new skills in order to carry out their functions, including safety inspections, and in using basic sources of legal and official information and information provided by or through the employer on health and safety matters” (Brown Book, paragraph 35). Training should be proactive and on-going in order to keep up to date with planned changes in the workplace.

Many safety reps have experienced difficulties in exercising their right to paid time off, particularly for attending training, so it is important to be aware of cases establishing the law in this area.

Where an employer fails to provide paid time off, the safety rep’s remedy is to apply to the employment tribunal (Regulation 11(1) SCSCR Regulations). An application must be made within three months of the date when the failure occurred.

Case law — time off for safety rep training

The case of Davies v Neath Port Talbot County Borough Council [1999] IRLR 769, established that part-time workers should be paid on the same basis as their full-time counterparts when attending a trade union training course. However, in 2009 an EAT found that an employer had not breached the regulations after a part-time safety rep attended a Stage 3 course on a day she would not normally work:

The right to paid time off to attend a TUC Stage 2 health and safety course was confirmed by the High Court in 1997. The judge overturned a tribunal ruling that had interpreted too narrowly the rights of safety reps to attend trade union courses:

An employment tribunal took the same approach for a Stage 3 course. In 2001, a tribunal ruled in favour of a safety representative who had been refused time off work by the Department of Social Security (now the Department for Work and Pensions (DWP)) to attend a TUC Stage 3 health and safety course, leading to a qualification recognised by the Institution of Occupational Safety and Health:

Safety reps’ rights to information

Safety reps are entitled to full information from their employers to enable them to carry out their functions under Regulation 7. The ACOP to the regulations sets out what information the employer should make available to safety reps. This includes:

• any proposed changes that may affect health and safety;

• technical information about hazards and necessary precautions, including information provided by manufacturers and suppliers;

• information and statistical records on accidents, dangerous occurrences and notifiable industrial diseases;

• any other information specifically related to matters affecting the health and safety at work of employees, such as measures to check the effectiveness of health and safety arrangements; and

• information on articles and substances issued to homeworkers.

There are exceptions to the requirements on information disclosure. These are:

• where disclosure would be “against the interests of national security”;

• where it would contravene a prohibition imposed by law;

• any information relating to an individual (unless consent has been given);

• information that would damage the employer’s business; and

• information obtained for the sole purpose of bringing, prosecuting or defending legal proceedings.

Safety reps are also entitled to receive information from HSE inspectors and local authority environmental health officers during their visits to employers’ premises, as well as from EMAS, the medical wing of the HSE.

Legal protection for safety reps

The functions set out in the SRSCR are not legal duties. This means that safety reps cannot be held legally liable if they fail to carry them out.

There are three main sources of statutory protection for safety reps who are unfairly treated or victimised for their union activities.

Sections 44 and 100 of the Employment Rights Act 1996 (ERA 96) deal specifically with health and safety cases. The ERA 96 says a person should not suffer a detriment or be dismissed or made redundant for various reasons including:

• carrying out legal functions as a safety representative or employee rep or other functions previously agreed with the employer;

• raising health and safety concerns with the employer;

• participating in safety consultations with the employer;

• leaving or refusing to return to a place of work in circumstances of serious and imminent danger, or taking steps to protect themselves or others in these circumstances; and

• carrying out safety duties designated by the employer.

Where dismissal is automatically unfair

Examples of cases where claimants have succeeded in persuading a tribunal that their dismissal was automatically unfair for a health and safety reason include an employee dismissed for refusing to drive defective vehicles and a young female employee, dismissed for refusing to take rubbish alone at night to a deserted dump. Steps to protect members of the public are also covered. For example, in Masiak v City Restaurants (UK) Limited [1999] IRLR 780, a chef dismissed for refusing to cook food he considered unfit for human consumption was protected.

“Circumstances of danger” has a relatively wide meaning and includes danger of violence from other employees (Harvest Press Limited v McCaffrey [1999] IRLR 778). However, in Balfour Kilpatrick v Acheson ([2003] IRLR 683), staff who walked out over being made to wear damp clothing were not able to show an imminent risk.

In 2012, with the support of the GMB, social club steward Karen Seacombe won £18,000 compensation for automatic unfair dismissal when she was dismissed from her post after raising health and safety concerns.

In Oudahar v Esporta Group Limited UKEAT/0566/10, the Employment Appeal Tribunal examined the extent of the protection of employees who withdraw labour when asked to work in circumstances they reasonably believe to represent a “serious and imminent” danger.

The EAT decided that as long as a tribunal is satisfied that there were “circumstances of danger” which the employee reasonably believed to be “serious and imminent”, any dismissal will be unfair if it was solely or mainly due to the employee taking steps to avoid the danger. In other words, it is wholly irrelevant whether the employer agreed at the time with the employee’s assessment of the risk, or felt that the steps chosen were necessary or appropriate:

Some unions provide useful advice on when workers can “stop the job”. For example, the Community union has produced pocket-sized cards for safety reps which set out the letter of the law, so that reps are clear about their rights if they feel they have to take this step.

In 2004, rail union RMT settled a case with London Underground over refusal to work on the grounds of serious and imminent danger. During the 2002 FBU firefighters’ dispute, scores of Tube workers withdrew their labour on the grounds that it was unsafe to work without firefighter cover. Fifteen RMT members whose wages were deducted as a result of their refusal to work took their case to an employment tribunal.

The union claimed that workers suffered a detriment because they were placed in a position of serious and imminent danger by the lack of availability of a fully operational fire service and adequate alternative cover. The union also argued that London Underground was not entitled to deduct wages because it had not taken reasonably necessary steps to ensure a safe working environment. Settlement was reached and the Tube workers’ pay reinstated.

A more recent example was the announcement by the Prison Officers Association (POA) in March 2011, following a wave of violent rioting in several UK prisons, that the union stands behind any member withdrawing to a place of safety following an act of violence, concerted indiscipline or riot where they reasonably believe their health and safety to be at risk.

An employee will still be protected as long as he or she genuinely and reasonably believes that a practice represents a health and safety risk, or a breach of health and safety law, even if this view later turns out to be mistaken. All that matters is that the view was genuinely and reasonably held at the relevant time:

For more examples, see Safety reps in action, LRD, 2011 www.lrdpublications.org.uk/publications.php?pub=BK&iss=1559

Reinstatement

The law does not allow tribunals to compel employers to reinstate workers who have been dismissed for taking a stand on health and safety, and reinstatement orders are very rare, with only eight orders being made in the whole of the year preceding March 2011. Even so, safety reps should always ask for reinstatement, as successful compensation awards may be higher if the employer refuses.

Compensation

The maximum compensatory award for unfair dismissal is currently capped at £72,300 (2012-13). However, there is no maximum cap in cases of dismissal for health and safety reasons or for whistleblowing. In practice, large awards are, however, rare. The median (midpoint) compensation award for unfair dismissal in the twelve months up to March 2011 was only £4,591.

Whistle-blowing — the Public Interest Disclosure Act 1998

The Public Interest Disclosure Act 1998 (PIDA 98) gives workers legal protection if they raise issues of serious concern about their workplace, including safety concerns, with their employer. It provides protection against victimisation or dismissal in cases where workers “blow the whistle”. PIDA 98 sets out a series of “protected disclosures” for which a worker has protection. These are where:

• a criminal offence has been, or is likely to be, committed;

• there has been a failure to comply with a legal obligation;

• a miscarriage of justice has occurred, or is likely to occur;

• health and safety is endangered;

• the environment is, or is likely to be, endangered; or

• information on any of the above is being concealed.

A dismissal of any worker making a protected disclosure will automatically be unfair, regardless of the length of service, and they can take their case to an employment tribunal.

Former safety rep Laurie Holden won a case against train company Connex in 2002 after he was unfairly dismissed for blowing the whistle about safety. He was awarded £55,000 in compensation at an employment tribunal. The case was important because the award included a payment for aggravated damages and injury to feelings, unusual in an unfair dismissal case. He complained that he had suffered stress and had been victimised for publicising safety risks, including signals being passed at danger (Holden v Connex South Eastern, ET 2301550/2000).

Proposal to introduce a “public interest” test to limit PIDA

A proposal in section 14 of the Enterprise and Regulatory Reform Bill 2012 is likely to significantly scale back the protection provided to workers by PIDA 98. The government wants to limit this protection, so that it is only available to those workers who make disclosures about wrongdoing “in the public interest”. In practice, a “public interest” test, if implemented, would be likely to deter workers who might otherwise have spoken up about their conditions at work since they would have to feel very confident that their concern can satisfy a wider “public interest” test.

Safety reps continue to be subjected to victimisation, bullying and even the sack for raising safety concerns at work. A 2010 report by charity Public Concern at Work revealed that 17% of calls to its whistleblowing helpline concern workplace safety, making this the second most common reason for contacting the helpline.

Interim relief

An interim relief order can be made in certain limited kinds of unfair dismissal claim relating to the carrying out of trade union or other representative functions in the workplace.

It can be made if it appears to the tribunal that a complaint is likely to succeed. In these circumstances, the tribunal can ask the employer to reinstate or re-engage the employee pending the full hearing. If the employer refuses, the tribunal can make what is known as a “continuation” order. This is an order that until the claim has been dealt with, the employee’s contract is treated as if it is continuing for the purposes of entitlement to any contractual benefits including pay, length and continuity of service.

Interim relief is only awarded where a tribunal considers that the complainant will succeed in the claim. It therefore provides a very strong indication that the employee is going to win the final hearing.

An application for interim relief must be brought within seven days of the dismissal. This means that reps wanting to claim interim relief must act very quickly indeed. A recent example of a successful interim relief application is provided by the case of Eamonn Lynch, RMT health and safety rep.

In July 2011, general union Unite published an updated Unite Health and Safety Guide for safety reps. It is available at: www.unitetheunion.org/pdf/Unite%20H&S%20Guide%20q7%20reducednovember2011.pdf

Anti-blacklisting regulations

The anti-blacklisting laws, the Employment Relations Act 1999 (Blacklists) Regulations 2010 (the Blacklist Regulations), became law in March 2010. The Blacklist Regulations make it unlawful for trade union members to be denied employment through the use of blacklists and they ban the compilation, dissemination and use of blacklists.

Under the Blacklist Regulations it is unlawful to refuse employment or sack someone because their name appears on a blacklist.

It is also unlawful for employment agencies to refuse to provide a service because someone’s name is on a blacklist.

Individuals or unions can pursue compensation or solicit action against those who compile, distribute or use blacklists.

The Blacklist Regulations were introduced following the discovery, in February 2009, of a secret blacklist that was being maintained by a business known as the Consulting Association. Its blacklist, naming more than 3,200 construction workers, overwhelmingly trade unionists, was uncovered in a raid by the Information Commissioner’s Office (ICO). The information on the blacklist, built up over decades, was secretly shared among 44 of the largest construction employers in the UK and was used to deny employment to those named on the list.

Despite the devastating impact of blacklisting on workers and their families, there has only been one prosecution for it. In July 2009, the manager of the Consulting Association, Ian Kerr, was fined just £5,000 with £1,187 costs for breaches of the Data Protection Act 1998. None of the companies that accessed the blacklist (whose names are now listed on the ICO website) or any of their directors suffered any penalty.

Blacklisted trade union safety reps and health and safety activists are among those who set up the Blacklist Support Group to campaign for justice following the discovery of the construction blacklist and in May 2010, the Group announced that an employment tribunal had ruled in a test case that information on the files compiled by the Consulting Association held by the ICO should be made public.

Employment tribunal claims based on the Blacklist Regulations

Under Regulation 7 of the Blacklist Regulations, workers have three months from the date of the act complained of in which to bring a claim for compensation in the Employment Tribunal.

Only three workers —Unite members Steve Acheson, Phil Willis and Paul Tattersfield — have taken successful employment tribunal cases and won compensation under the Blacklist Regulations. The highest payout was just under £24,000 which was paid to Tattersfield, who won his case after a tribunal found that Balfour Beatty Engineering Services Limited refused to employ him because his name was on the Consulting Association blacklist. The award included amounts for loss of earnings, injury to feelings and aggravated damages. The Blacklist Support Group argues that blacklisting can result in workers losing earnings over many years, amounting to hundreds of thousands of pounds.

Failure to comply with the strict tribunal time limit for bringing claims is reported to be a main reason why so few cases have succeeded, with workers waiting too long before instructing a solicitor.

Another problem with the legislation is its failure properly to protect agency workers, as opposed to the directly employed. Agency workers are particularly common in the construction sector.

In 2012, former UCATT health and safety activist Dave Smith lost his claim against subsidiaries of construction giant Carillion for £175,000 compensation for lost earnings, even though the tribunal concluded that he had been blacklisted by the employer for raising concerns about asbestos on building sites, and because of his trade union activities. The companies admitted using a blacklist, but the case failed because Dave Smith was employed through an employment agency rather than being a direct employee of the Carillion subsidiary.

Dave Smith’s case is particularly interesting because during the trial, an ICO employee told the tribunal that the Consulting Association files contained information that could only have been supplied by the police or the security services. Labour MP John McDonnell has called on the government to set up a public inquiry into blacklisting.

Weaknesses in the Blacklist Regulations

In a 2009 report for UCATT, Ruined lives — blacklisting in the UK construction industry, labour law expert Professor Keith Ewing set out a number of recommendations to strengthen the Blacklist Regulations:

• they should provide a basic award of compensation for the fact of being blacklisted, with an additional compensatory award for losses suffered;

• they should provide for blacklists to be handed over to the ICO who should owe a positive duty to inform people that they are on the list and to notify them of their legal remedies;

• it should be a criminal offence to compile, maintain and access blacklists; and

• there should be a compensation scheme for people who have been blacklisted in the past. Unions have proposed that this compensation should be funded by the companies who used the Consulting Association database.

European developments in the anti-blacklisting campaign

At European level, there has been some action over the past year. In December 2011, two Labour MEPs secured an amendment to the European Parliament resolution on the mid-term review of the European strategy 2007-12 for health and safety at work.

The revised resolution includes a reference to blacklisting. It calls on the European Commission to propose a directive that protects individuals who raise legitimate health and safety concerns, and that puts an end to the blacklisting of these workers by ensuring that “such a violation of a fundamental labour right is prevented by means of effective, proportionate and dissuasive sanctions”.

Safety committees

An employer who receives a written request from at least two safety reps must establish a safety committee within three months of the request.

The employer must consult the reps making the request and representatives of recognised trade unions in workplaces covered by the committee. A prominent notice must also be posted stating the composition of the committee and the work areas it covers.

The HSE suggests that the basic tasks for a committee include analysing accident and disease trends, developing safety rules and advising on safety communication. The guidance to the SRSCR recommends that the committee should be made up of half management and half union reps, and that safety advisers, doctors and other health and safety professionals should be ex-officio members.

Enforcement of the Safety Reps and Safety Committees Regulations

An inspector (from the HSE or the local authority) can intervene in disputes concerning safety reps where an employer has failed:

• to accept the appointment of a safety rep by a recognised trade union;

• to provide information and facilities; or

• to discuss the establishment of a safety committee following a request from two safety reps.

Disputes about recognition should be taken to the employment relations service Acas.

Although an employer must listen to and consult safety reps, there is no legal means of insisting that their advice is acted upon. To be effective, safety reps need good union organisation and the backing of those they represent.

Employee consultation where there is no union recognition

Under the Health and Safety (Consultation with Employees) Regulations 1996 (HSCER), employers must consult employees who are not covered by trade union safety reps. The employer can choose to consult these employees directly or through elected representatives.

If representatives are to be elected, the employer must make arrangements for elections of representatives of employee safety (ROES), who are elected by the group of employees with whom they work.

Trade union members can stand for election and can represent a workforce, even though the union is not recognised. Rights to time off, training and protection from harassment are essentially the same for safety reps and ROES, although the latter do not have the right to inspect or to establish a safety committee.

Scope of obligation

Consultation with employees must be carried out on matters concerning health and safety at work, including:

• any change which may substantially affect their health and safety at work;

• arrangements for appointing competent people to assist the employer or satisfy health and safety laws;

• information on the risks involved in the work and the measures to prevent or control the risks, including what action should be taken by employees;

• the planning of health and safety training; and

• the health and safety consequences of introducing new technology.

Union campaigns to improve the SRSCRs

Campaign for roving safety reps

Unions continue to press the case for “roving representatives” to cover small workplaces or workplaces in industries with poor safety rep coverage, such as agriculture and construction to overcome the limitation inherent in the SRSCRs’ demand that safety reps must be an employee of the workplace where they are to carry out their functions (except for the Musicians’ Union and actors union Equity). The TUC points to Sweden’s successful experience of the roving rep system.

Roving reps would have the power to gain entry to any workplace and carry out their health and safety functions. Research for the HSE has found that the use of union-appointed safety representatives in agriculture (and associated rural businesses) in a “roving” or peripatetic capacity and on a national basis is both practical and feasible.

Unions point to the systemic safety risks that result from the growing “casualisation” of the workforce and the breakdown of the traditional “direct employment” model, with greater use of agency workers, as well as both legitimate and bogus self employment. Lack of continuity and job security in these models greatly increases the risk of workers engaging in risky activity or deciding not to report an accident or near miss. All this strengthens the case for a system based on “roving reps”.

Some teaching, local government and finance unions have already negotiated agreements giving reps some roving powers but unions would like an amendment to the SRSCRs to put these powers on a statutory footing.

The Löfstedt review acknowledged the problems resulting from many small firms with no recognised union representation having no formal structures in place for representation and consultation on health and safety and cited evidence of a pilot project rolled out successfully by construction union UCATT in 2003 which “found evidence that it could benefit both employers and employees in small businesses”. However, Löfstedt went on to dismiss the idea of legislating for roving reps, speculating that such a system could introduce an extra layer of administration and advice that “promotes excessive precaution, and is also likely to have significant cost implications”.

In practice, Löfstedt’s limited remit — to look at ways of reducing the burden of regulation on business, as opposed to looking at ways of improving worker safety — made it inevitable that he would fail to recommend roving reps.

Extending the scope for safety reps to act as a conduit for all staff regardless of union membership

The Code of Practice on the SRSCRs (paragraph 23) says: “Normally recognised trade unions will appoint reps to represent a group(s) of workers for which the union has negotiating rights. However, limiting representation to a particular group should not be regarded as a hindrance to the representative raising general matters affecting the health and safety of employees as a whole”. For example, safety inspectors’ union Prospect gave evidence to the Löfstedt review that they try to make agreements with employers over arrangements for Prospect safety reps to act as a conduit for consultation on behalf of all staff, regardless of trade union membership, ensuring that all staff benefit from the collective representation envisaged by the SRSCRs. This kind of approach has several benefits, including, in particular, doing away with the need for the employer to consult the non-unionised section of the workforce separately under the Safety (Consultation with employees) Regulations 1996.