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Ask the Expert: What is the legal status of union-appointed safety reps?


The question

Under The Safety Representatives and Safety Committees Regulations 1977 and The Health and Safety (Consultation with Employees) Regulations 1996, only trades unions can appoint safety representatives – they can do this whether the employer wishes them to or not and indeed they can appoint as many safety representatives as they want.
These safety representatives have a statutory right to be paid for their safety work and have some exclusive rights not granted to any other worker, which can be acted upon if the safety representative decides that they want to. The employer has no right to terminate these appointments.
But it is not clear to me who the safety representative actually represents. It is a union appointment so presumably he represents all members of the union whether they want him to or not?
But the regulations do not state (as far as I am aware) whether or not they represent non-union employees and whether this representation can be imposed by the union or not?
Paragraph 3 of the 1996 Regulations speaks of "employees who are not represented by safety representatives under the 1977 Regulations", but it does not define how they may find themselves in this position.
The Health and Safety Executive also talks about, if "there are any employees who do not belong to a trade union and recognised trade unions have not agreed to represent them."
Does this mean, in their opinion, that if the union says "we will represent all employees", then it doesn’t matter what the employees think because the decision has been made for them? And what happens if, for example, there are 500 employees in a company, but only one is a member of a recognised union?
If the employees have formed a health and safety committee, can the union dissolve it by appointing their member to represent the entire workforce? And if s/he is lazy or incompetent, have they any redress?
This legislation seems absolutely idiotic to me because it has been written from a corporatist mindset. It appears to give unions great powers even though the employees don’t want them to have them.
So can you tell me, if a union appoints a safety representative who claims to represent the whole of the workforce, can this claim be rejected?
And if safety representatives are appointed and exercise their right to form a safety committee, can the employer say that the safety representatives and the committee have the right to make inspections and representations to them, but the committee that actually makes the decisions is separate and its members are appointed under the employer’s rules?
The legal verdict
Esther Smith, a partner at Thomas Eggar
It is not clear whether or not the workforce that your question relates to is represented by a recognised trade union, with which there is a collective agreement, or whether there are simply some members of the workforce who are union members.
But the union has a right to appoint health and safety reps if there is a recognised trade union in place. If they appoint reps, then they are there on behalf of the whole workforce and can make representations to the employer about H&S issues. 
Employers are not obliged to comply with their requests or to meet their demands, but they are, of course, bound by an overriding duty to look after the health, safety and wellbeing of their workforce.
Therefore, if they disregard valid complaints by any union H&S reps, it could result in a potential claim either from the recognised trade union or, more likely, from individual employees if they suffer some injury or harm.
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
Adam Partington, a solicitor at Speechly Bircham
Under the Safety Representatives and Safety Committees Regulations 1977, recognised independent trade unions have a right to appoint safety representatives and employers must consult with these union-appointed representatives on health and safety matters that affect represented employees.
According to Health and Safety Executive guidance, a recognised trade union can also agree to represent employees who are not union members or who are in unions that are not recognised by their employer.
Even if staff are not so represented, their employer will still need to consult with them under the Health and Safety (Consultation with Employees) Regulations 1996. These Regulations require employers to consult any employees that are not represented by the trade union concerned.
Turning to your second question regarding the health and safety committee, if two or more union-appointed safety representatives request in writing that such a committee is set up, their employer must do so within three months of the request being made.
Although the committee is there to consult with employees through their representatives, it is still employers who are ultimately responsible for the health and safety of their staff and for making decisions in regard to health and safety.
Adam Partington is a solicitor at Speechly Bircham LLP.

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