Use this checklist to confirm your arrangements meet the Health and Safety (Consultation with Employees) Regulations 1996 (HSCER 1996). It covers employees who are not represented by trade union safety representatives appointed under the Safety Representatives and Safety Committees Regulations 1977 (SRSCR 1977). If you are unsure which regime covers which group, see Working out which safety consultation regime applies.

Answer each item yes or no. Any "no" is a likely compliance gap — follow the linked task guide to fix it.

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.

Have you documented which employees fall under HSCER and which under SRSCR?

You should have a written record of the regime decision for each group of employees, refreshed when union recognition or safety-rep appointments change. If no, see <a href="/guidance/when-hscer-vs-srscr-applies/">Working out which safety consultation regime applies</a>.
Have you decided whether to consult HSCER employees directly or through elected representatives?

The choice can be group by group, but it must be a positive decision and communicated to the employees affected. If no, see <a href="/guidance/consult-employees-on-health-and-safety/">Consult your employees on health and safety</a>.
Where you chose RoES, have they been elected (not appointed) by the employees they represent?

Self-appointed "safety champions" do not satisfy HSCER. The employees in the constituency must vote. If no, see <a href="/guidance/elect-representatives-of-employee-safety/">Elect representatives of employee safety</a>.
Do you consult in good time on all five statutory topics in regulation 3?

The five topics are a closed list: new measures substantially affecting health and safety, appointment of competent persons, statutory health and safety information, planning of statutory health and safety training, and the health and safety consequences of new technologies. Consultation must happen before decisions are taken.
Do you give employees or their RoES the information they need to participate?

You must share the information within your knowledge that employees or their representatives need to participate fully and effectively, including relevant RIDDOR records. Limited statutory exceptions apply.
Do RoES receive reasonable training, paid for by you, including paid time off to attend?

Training costs (fees, travel, subsistence) are the employer's. Time off for training is paid time off under regulation 6. If no, see <a href="/guidance/support-roes-training-time-off-facilities/">Support representatives of employee safety</a>.
Do RoES get paid time off during working hours to perform their statutory functions?

Pay is calculated under Schedule 1 by reference to normal working hours and average hourly earnings. Refusal or non-payment can be challenged at an employment tribunal under regulation 8.
Have you provided the facilities and assistance RoES reasonably need?

Somewhere private to meet, access to relevant documentation, a noticeboard, and cover for their duties while they perform their functions.
Do you keep a brief record of consultations (topic, date, who, views raised, outcome)?

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.
Have line managers been briefed on the RoES role and the time-off duty?

Most disputes start with line managers who treat statutory time-off requests as discretionary. A short briefing prevents most issues.

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.

Training, time off and facilities for RoES (HSCER reg.6)

Reg.6 HSCER 1996 — employer's duty to provide reasonable training (at the employer's cost), reasonable paid time off, and the facilities and assistance RoES need.

Under regulation 6 of HSCER 1996, where an employer consults employees through representatives of employee safety (RoES), the employer must: - ensure each RoES is provided with such reasonable training in aspects of their functions as is reasonable in the circumstances; - meet any costs associated with that training, including travel and subsistence costs; - give each RoES such time off with pay during working hours as is necessary to perform their functions and to undergo that training; and - make available to each RoES such other facilities and assistance as they may reasonably require to carry out their functions. Time off and pay are quantified by reference to the employee's normal working hours and average hourly earnings; the detailed calculation rules are set out in Schedule 1 to the Regulations. A RoES (or election candidate) who is not allowed to take paid time off, or is not paid for time taken, may complain to an employment tribunal under regulation 8 and Schedule 1.

If you answered "no" to any item, treat it as an open compliance gap. Failure to consult, or to support an elected RoES, is a criminal offence under section 33 of the Health and Safety at Work etc. Act 1974 — not a soft duty. Fix the gap before the next triggering event (a new policy, new equipment, a reorganisation) crystallises the breach.

Penalty for failing the checklist items

Penalty:

<p>Breach of regulations 3, 4, 5, 6, 7 or 8 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. Maximum penalty on conviction is
an unlimited fine. HSE or the relevant local authority
can investigate and serve an improvement notice. RoES and
election candidates also have a separate civil remedy at
an employment tribunal under regulation 8 and Schedule 1
for unpaid statutory time off.</p>

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Guvnor

HSCER 1996 compliance checklist for employers

Have you documented which employees fall under HSCER and which under SRSCR?

Have you decided whether to consult HSCER employees directly or through elected representatives?

Where you chose RoES, have they been elected (not appointed) by the employees they represent?

Do you consult in good time on all five statutory topics in regulation 3?

Do you give employees or their RoES the information they need to participate?

Do RoES receive reasonable training, paid for by you, including paid time off to attend?

Do RoES get paid time off during working hours to perform their statutory functions?

Have you provided the facilities and assistance RoES reasonably need?

Do you keep a brief record of consultations (topic, date, who, views raised, outcome)?

Have line managers been briefed on the RoES role and the time-off duty?

Penalty for failing the checklist items

Compliance Assistant

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Have you documented which employees fall under HSCER and which under SRSCR?

Have you decided whether to consult HSCER employees directly or through elected representatives?

Where you chose RoES, have they been elected (not appointed) by the employees they represent?

Do you consult in good time on all five statutory topics in regulation 3?

Do you give employees or their RoES the information they need to participate?

Do RoES receive reasonable training, paid for by you, including paid time off to attend?

Do RoES get paid time off during working hours to perform their statutory functions?

Have you provided the facilities and assistance RoES reasonably need?

Do you keep a brief record of consultations (topic, date, who, views raised, outcome)?

Have line managers been briefed on the RoES role and the time-off duty?

Penalty for failing the checklist items

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