If any of your employees are not represented by safety representatives appointed by a recognised trade union under the Safety Representatives and Safety Committees Regulations 1977, you must consult them on health and safety under the Health and Safety (Consultation with Employees) Regulations 1996 (HSCER 1996). This guide covers what to do.

Before you start, confirm which regime applies to which group of your workforce. If you have not yet done that, see Working out which safety consultation regime applies.

When HSCER 1996 applies versus SRSCR 1977

Boundary rule between the two GB workplace H&S consultation regimes — SRSCR 1977 covers union-represented employees; HSCER 1996 covers everyone else.

Two parallel regimes govern statutory health and safety consultation in Great Britain, and together they cover every employee: - The Safety Representatives and Safety Committees Regulations 1977 (SRSCR 1977) apply to employees who are represented by safety representatives appointed by a recognised trade union. - The Health and Safety (Consultation with Employees) Regulations 1996 (HSCER 1996) apply to any employees who are not represented by SRSCR safety representatives. In a partly unionised workforce both regimes operate side by side in the same workplace: SRSCR for the union-represented employees and HSCER for the rest. An employee is only "represented" for SRSCR purposes once a recognised trade union has actually appointed a safety representative for them in writing — recognition alone is not enough. Where no appointment has been made, those employees fall under HSCER 1996. In Northern Ireland the equivalent regime is the Health and Safety (Consultation with Employees) Regulations (Northern Ireland) 1996 (NISR 1996/511), enforced by HSENI.

1. Decide how you will consult: direct or through RoES

You can consult employees directly, or through one or more elected representatives of employee safety (RoES), or use a mix for different groups. Direct consultation suits small, co-located workforces where you can speak to everyone in good time. RoES suit larger or dispersed workforces, shift patterns, or where employees prefer a representative voice. Decide group by group, document the decision, and explain it to the employees affected.
2. If you have chosen RoES, arrange the election

You must not appoint RoES yourself — they must be elected by the employees they will represent. See <a href="/guidance/elect-representatives-of-employee-safety/">Elect representatives of employee safety</a> for the procedure.
3. Identify what you must consult on

Regulation 3 sets a closed list of five matters. Consultation must happen in good time on each: any new measure that may substantially affect health and safety, your arrangements for appointing competent persons, statutory health and safety information you must give employees, the planning of statutory health and safety training, and the health and safety consequences of introducing new technologies. Build a trigger list so the duty is not missed when these arise.
4. Share the information employees need

Consultation only works if employees or their RoES have the facts. You must make available the information within your knowledge that they need to participate fully and effectively, including the relevant RIDDOR records. Limited statutory exceptions apply (national security, individual personal information without consent, legal proceedings, and substantial commercial injury for non-industrial-relations reasons).
5. Consult in good time and listen before you decide

Consultation must happen before the decision is taken, with enough time for employees or RoES to consider the proposal, ask questions, and respond. Take their views into account. "Inform after the fact" is not consultation and does not discharge the duty.
6. Record the consultation

Keep a brief record of what was consulted on, with whom, when, what views were raised, and how those views were taken into account. The Regulations do not prescribe a format, but a contemporaneous record is the practical evidence that consultation happened if HSE or the local authority asks.

Employer's duty to consult employees on health and safety (HSCER reg.3)

Reg.3 HSCER 1996 — duty to consult employees not covered by SRSCR safety representatives, and the closed list of statutory consultation topics.

Under regulation 3 of HSCER 1996, an employer must consult any employees who are not represented by SRSCR safety representatives. Consultation may be either with the employees directly or with one or more elected representatives of employee safety (RoES). Consultation must be carried out in good time on each of the following matters: - the introduction of any measure at the workplace which may substantially affect the health and safety of those employees; - the employer's arrangements for appointing or nominating the competent persons required under regulations 7 and 8 of the Management of Health and Safety at Work Regulations 1999; - any health and safety information the employer is required to provide to those employees by or under the relevant statutory provisions; - the planning and organisation of any health and safety training the employer is required to provide; and - the health and safety consequences for those employees of the introduction (including the planning) of new technologies into the workplace. This is a closed statutory list. Breach of regulation 3 is a criminal offence under section 33 of the Health and Safety at Work etc. Act 1974, with penalties set out in Schedule 3A of that Act.

Information to be provided to employees and RoES (HSCER reg.7)

Reg.7 HSCER 1996 — employer's duty to give employees or their RoES the information needed for effective consultation, with limited statutory exceptions.

Under regulation 7 of HSCER 1996, the employer must make available to the employees being consulted (or to their representatives of employee safety) the information within the employer's knowledge that is necessary to enable them to participate fully and effectively in the consultation. Where representatives are in place, this also includes the information they need to carry out their regulation 5 functions. The information must include the records the employer is required to keep under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR) that relate to the workplace or the group of employees represented. The duty does not require disclosure of information where: - disclosure would be against the interests of national security; - disclosure would contravene a prohibition imposed by or under any enactment; - the information relates specifically to an individual and that individual has not consented to its disclosure; - disclosure would, for reasons other than its effect on negotiations on industrial relations matters, cause substantial injury to the employer's undertaking or, where it was supplied by another person, to that person's undertaking; or - the information was obtained by the employer for the purpose of bringing, prosecuting or defending any legal proceedings.

The five statutory consultation topics are a closed list. They are not advisory and you cannot substitute "consultation in general" for specific consultation on, for example, the introduction of new technology. If a triggering event occurs and you have not consulted, the breach has crystallised even if you consult later.

Penalty for failing to consult

Penalty:

<p>Failing to consult under regulation 3 of HSCER 1996 is a
criminal offence under section 33 of the Health and Safety
at Work etc. Act 1974, with penalties set out in Schedule 3A
of that Act. The maximum penalty on conviction is an
unlimited fine. HSE or the local authority enforcing the
workplace can investigate and serve an improvement notice
requiring you to put consultation arrangements in place.</p>

What next

If you chose the RoES route, see Elect representatives of employee safety.
Once RoES are in place, see Support representatives of employee safety for your training, paid time off and facilities duties.

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Consult your employees on health and safety

1. Decide how you will consult: direct or through RoES

2. If you have chosen RoES, arrange the election

3. Identify what you must consult on

4. Share the information employees need

5. Consult in good time and listen before you decide

6. Record the consultation

Penalty for failing to consult

What next

Compliance Assistant

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1. Decide how you will consult: direct or through RoES

2. If you have chosen RoES, arrange the election

3. Identify what you must consult on

4. Share the information employees need

5. Consult in good time and listen before you decide

6. Record the consultation

Penalty for failing to consult

What next

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Fire safety duties for Scottish businesses

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