Inspection - Stage 3: Conduct inspection - Additional guidance
Contact with employee representatives by HSE field staff
- Policy
- Definitions
- General guidance
- Related enforcement guidance
- Agreeing specific contact/communication arrangements
- Contacting appropriate representatives during visits
- Concluding the visit
- Disclosure of information
- Recording contacts at a visit
Policy
Contacting employees and their representatives at pertinent times and providing them with appropriate information is an intrinsic part of intervention activities undertaken by HSE field staff.
The general policy is that field staff will contact relevant 'Appropriate Representatives' during all visits, unless alternative contact agreements exist.
Definitions
'Appropriate representatives' includes representatives appointed or elected under the relevant regulations. Where these do not exist field staff should, where possible, communicate with employees as set out in this guidance through a suitable representative or directly.
'Field staff' only includes non-warranted staff if they have gained the permission of the duty holder to contact appropriate representatives
General guidance
Field staff should support appropriate representatives by adopting a policy of openness so far as the law permits.
They should confirm the purpose of the visit, any matters of concern relating to their health and safety and any actions to be taken as a result, including enforcement, taking account of any diversity aspects relevant to the situation.
Field staff should also:
- establish what consultation mechanisms are in place and assess the level of compliance
- where necessary remind employers of the requirement for them to consult their employees in good time on issues that may affect their health and safety
- encourage active workforce involvement in health and safety matters to promote effective partnerships between employers, unions, workers and their appropriate representatives.
- support the role of trade union appointed safety representatives in the use of their powers of investigation, inspection and in forming and participating in safety committees
Related enforcement guidance
The legal duties placed on employers to consult employees and when enforcement relating to these duties should be considered is covered in:
Enforcement of regulations requiring consultation with employees
Agreeing specific contact/communication arrangements with appropriate representatives
Where appropriate, contact/communication arrangements should be agreed with appropriate representatives and recorded.
These could include:
- where field staff visit a particular workplace on a regular basis then specific details of the contact arrangements may be agreed locally between field staff and the appropriate representatives at the workplace
- making contact with only nominated lead appropriate representatives where significant numbers are present
- making contact at suitable stages, eg where a series of visits are planned
- alternative means of contact/communication where the normal routes are temporarily not available
- special arrangements involving national contacts for multi site duty holders
- Special arrangements may be agreed to meet the needs of temporary circumstances such as the investigation of a major incident or a substantial audit.
Contacting appropriate representatives during visits
At workplaces not covered by specifically agreed contact arrangements:
- representatives appointed or elected under the relevant regulations are the preferred main route of communication with employees at visits: where these do not exist field staff should where possible communicate with employees through another appropriate representative or failing that, contact them directly – and employers must allow time for this
- where joint visits are undertaken, the person who has the lead role for the premises should ensure appropriate contact with employees is made
- at premises/sites that have more than one duty holder, eg contractors, field staff should make a judgement on the value of contacting the appropriate representatives (if any) of each duty holder
- where visits are made by appointment, appropriate representatives should be informed in advance and told the purpose of the visit
- whenever possible, appropriate representatives should be contacted at an early stage of the visit (if necessary by telephone) to confirm the purpose of the visit and establish any concerns they may have
- where appropriate representatives are appointed but are not available, reasonable efforts to contact them should be made after the visit, eg by telephone, to inform them of the significant results of the visit
- it is ultimately for field staff to decide if they wish to be accompanied by any appropriate representative during the visit, only a warranted member of staff can require that an appropriate representative accompany them, account should be taken of any existing appropriate representative/management agreement on this aspect, however appropriate representatives have no legal right to this
- if there appears to be potential for personal criticisms to arise in respect of actions/inactions of individual senior managers, field staff should ensure that those discussions are held without the appropriate representative being present
- where requested (or considered necessary) appropriate representatives should be given the opportunity to attend a private interview with field staff.
Note: with respect to offshore inspections in OSD there is a legal requirement for safety representatives to be appointed. Circumstances where none are available should be investigated.
Concluding the visit
On concluding the visit (or series of visits):
- field staff should discuss their findings and any follow up action with appropriate representatives, directly where possible, otherwise by telephone, etc
- where appropriate, a joint open discussion with both senior management and appropriate representatives is to be encouraged
- appropriate representatives should be encouraged to ensure issues raised are actioned, eg by being progress chased through safety meetings.
Disclosure of information
The Health and Safety at Work, etc, Act 1974 s.28(8) places a duty on inspectors to provide factual information in circumstances where it is necessary to do so for the purposes of assisting in keeping persons (or the representatives of persons) employed at any premises adequately informed about matters affecting their health safety and welfare.
Where such factual information is provided, then it also has to be provided to the employer.
HSC/E has adopted a policy of openness in disclosing information subject to any restrictions imposed by legislation, such as HSWA S28 restrictions on disclosure, and the rights of an employee under SRSCR reg 7(2) or HSCER reg 5(3) to decide whether information relating specifically to themselves should be release to the appropriate representative by the employer.
Such disclosure of information should take account of the following:
- provide as much information as possible, within the legislative constraints, concerning employees health and safety, to appropriate representatives to enable them to fulfil their role effectively
- where health and safety information discussed during the visit is subsequently confirmed to an employer in writing, the same information should be confirmed in writing to the appropriate representative - reliance should not be placed on employers to pass on our correspondence to appropriate representatives
- in cases where correspondence with the employer cannot be made available to appropriate representatives in its entirety, eg HSWA s28 restrictions apply, a separate letter should be prepared and sent to the appropriate representatives
- provide such factual information on consideration of safety reports, safety cases and licensing applications as inspectors think is necessary to keep employees adequately informed about matters affecting their health and safety
- where enforcement notices (including Crown notices) or licence instruments are issued, copies should be forwarded to appropriate representatives
- where legal proceedings (including Crown sanctions) have been approved and confirmed to the defendant, appropriate representatives should then be informed giving the time, date and place of the hearing
- the results and interpretation of the results of monitoring or sampling in the workplace carried out by or on behalf of HSE should be confirmed in writing to appropriate representatives unless they relate specifically to an individual who has not given their consent to their disclosure.
Recording contacts at a visit
- The names of appropriate representatives seen, trade union (if applicable) and details of how contact with appropriate representatives was made should be recorded in visit reports.
- Where no appropriate representative was contacted at a visit and no intermittent contact arrangements were previously agreed, brief reasons why there was no contact should be recorded.