Legal

The role and rights of health and safety representatives

28 Oct 2020 By Victoria Albon and Kate Coppack

Covid-19 has brought the importance of staff taking on such duties to the fore, say Victoria Albon and Kate Coppack – but what protections apply?

Workplace health and safety representatives are potentially particularly important in the current climate, when many employees may feel apprehensive about returning to the workplace, even if the environment is one that would normally be considered low risk from a health and safety perspective. 

Health and safety reps can either be appointed by a trade union recognised by the employer for collective bargaining purposes or, where no union representative is appointed, elected by employees. 

Different legislation applies to protect these representatives, depending on how they are appointed. However, broadly the same rights and protections will apply regardless of how they come to the role. These are to:

  • be informed and consulted with regard to health and safety matters in the workplace;
  • 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 during 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 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 reps have to be paid for their additional duties? 

There is no automatic right to be paid an additional sum simply for taking on the role of health and safety rep. However, reps do have the right to paid time off to carry out their health and safety duties, and for training. For duties carried out during working time, reps will be paid their normal wage anyway. This means that they may spend a significant period of time away from their substantive role to attend meetings and reasonable training, and they will need to be paid for this as long as the length of time taken overall is necessary. 

What legal risks must employers be aware of?

Health and safety reps may bring claims for a failure to allow time off or to pay for it. They also have the right not to suffer detriment or dismissal because they performed, or proposed to perform, any of their health and safety functions. For example, they should not miss out on a promotion or pay rise because of their involvement in health and safety matters. In addition, where a health and safety rep is dismissed because they performed health and safety functions, that dismissal will be automatically unfair. A rep need not have acquired two years' service before they can bring the claim. This is to recognise the importance of the health and safety role, and to ensure the protections reflect that.

Are all firms required to have health and safety reps?

Not all employers will have health and safety representatives. In workplaces where health and safety issues arise only infrequently, the employer may consult on health and safety issues directly with the workforce as a whole. This does not mean all employees consulted will automatically obtain the above rights and protections. These only apply to formally appointed or elected health and safety reps.

However, employers should encourage, support and protect the role of the health and safety rep in their workplace. This will help create a safer working environment, and may increase employee confidence – particularly important, of course, at the current time. 

Victoria Albon and Kate Coppack are associates at Dentons

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