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 have the right to inspect or establish a safety committee.

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.