Health and Safety (Consultation with Employees) Regulations 1996.
In 1995 the government passed new legislation on consultation on redundancies and transfers in response to a European Court of Justice judgment which said that the previous position was unlawful. The Government was required to legislate so that employers could not avoid obligations by refusing to recognise unions.
The legislation, the Collective Redundancies and Transfer of Undertakings (Protection of Employment)(Amendment)Regulations, attempted to undermine trade unions by allowing employers to consult with elected representatives, even where a union is recognised.
The Government took a different tack on safety consultation. This was foreshadowed in a letter from the Secretary of State at the time, Michael Portillo, to the Health and Safety Commission on 1 May 1995. He said: "In essence, I believe employers should continue to consult the representatives of a recognised trade union where a union is recognised; elsewhere the employers should consult elected representatives of their employees or...their employees directly."
The difference in approach is interesting and the real motivation behind the government's approach is not revealed. Mr Portillo's letter merely states that: the considerations on health and safety differ in some respects from those on redundancies and transfers", without specifying those considerations or differences.
It is possible - if unlikely - that the government was prepared to acknowledge the effective role played by safety representatives and committees in reducing workplace accidents. A more likely explanation is that the government could not adopt the 'ad hoc' approach taken on transfers and redundancies where it requires representatives to be elected only when the need to consult arises. Safety is a continuing concern and requires a continuing presence.
An approach which, in effect, required all employers to arrange or permit elections for representatives of all staff not "of a description for which a trade union is recognised" would not have been attractive. The other pragmatic reason is probably that the expertise of trade union representatives, and the amount of training provided by unions, reduces the potential training burden on employers and state.
The role of safety representatives and elected representatives in employee safety may yet evolve further as the Government appears to envisage a possible role for them in reaching agreements under the Working Time Directive, as indicated in the DTI Consultation Document published on 6 December 1996 (see: Stretching the meaning of time, in this issue of LELR).
The Health and Safety (Consultation with Employees) Regulations came into force on 1 October 1996. These Regulations apply where there are employees not represented by safety representatives under the existing regulations (Reg 3). Remember that under the existing law, trade union appointees represent "employees or groups of employees", not merely union members. There is no need to restrict them to only representing grades or occupations which are covered by union recognition.
Many, if not most, employers who currently deal with union safety representatives will find that the most effective approach is to continue with that approach and, indeed, to extend the union role to cover any groups of employees not yet covered, who would otherwise need to have elected representatives in place.
The Directive provides that representatives act on behalf of all employees, so it would be unlawful for UK law to restrict their functions to unionised categories. Where there are groups of employees not covered by union recognition, then the employer must provide for elected representatives. This is in addition to existing union representatives. Those union representatives cannot be superseded or replaced by the elected representatives.The employer does have the option of consulting directly with individual employees (Reg 4). While consultation with individuals remains important,even where representatives exist, it is unlikely that employers of any size will find consultation with individual employees a realistic alternative to consulting through representatives. Where representatives have been elected the employer must tell the employees the name of the representative and who she or he represents.
Either the employer or the employees can trigger an election. The right is for workers in "a group of employees" to elect representatives from amongst their number. A group of employees is not defined.
This means that the number of representatives and their sphere of responsibility are left open, which may not make for the most effective consultation and may lead to a plethora of representatives. There should be a provisions for a safety committee in non-union situations. A committee, and some overall scheme on "groups of employees", constituencies, number of reps etc, would seem minimum requirements.
The proposed Regulations do not say what happens if there is a dispute on the conduct of an election or the "representativeness" of the representatives. The lack of any specific legal obligations makes enforcement almost impossible. This absence of any effective remedy has proved a significant issue in the judicial review proceedings over the redundancy and transfer consultation regulations. It is compounded in the safety sphere where the Regulations specifically deny employees and representatives the right to bring a civil claim for any failure to comply.
There is a difference between the functions of a union appointed safety representative and those of an elected representative. The functions under the 1996 Regulations are far more limited. The employer must consult the representatives on matters relating to health and safety at work and must provide training, time off and facilities for the representatives to carry out their functions. But those functions consist only of making representations (on the same issues as union safety representatives) without the functions of inspection.This means that elected representatives are confined to an inferior role, with statutory functions which are less intrusive and which are essentially reactive: a representative can only make representations on matters of which he becomes aware. This deficiency is difficult to justify and sits awkwardly with the emphasis on prevention in European law and the effective conduct of the representatives' remaining functions.
The memorandum which accompanied the proposal for these Regulations stated merely that these additional functions "would not be required of elected representatives". But would they be aware of this potential wider role?
Even if they were, they appear to lack the clout to carry it out effectively, as the right to time off and facilities is limited to carrying out the statutory functions (Regulation 7), and protection against dismissal or detriment arises in relation to "participating in consultation" or in an election.
The protection given on health and safety consultation is wider than redundancies and transfers in this respect: all those participating in elections are protected against detriment for doing so. This must include those organising the election or voting in it, not merely those who stand as candidates.