Guide
Working out which safety consultation regime applies: HSCER 1996 or SRSCR 1977
An explainer for employers who need to work out whether the Safety Representatives and Safety Committees Regulations 1977 (SRSCR) or the Health and Safety (Consultation with Employees) Regulations 1996 (HSCER) governs their statutory duty to consult employees on health and safety. Walks through the four common workforce shapes — fully unionised, fully non-unionised, partly unionised with mixed representation, and recognised union but no safety rep appointed — and shows how the two regimes coexist in one workplace.
If you employ anyone in Great Britain you have a statutory duty to consult them on health and safety. Two sets of regulations carry that duty between them, and together they cover every employee in the country: the Safety Representatives and Safety Committees Regulations 1977 (SRSCR 1977) and the Health and Safety (Consultation with Employees) Regulations 1996 (HSCER 1996). Working out which one applies to which group of your employees is the first decision you need to make before you can set consultation arrangements up.
The boundary is not about the size of your business or the sector you operate in. It is about whether your employees are represented by a safety representative appointed by a recognised trade union.
The four common workforce shapes
1. Fully unionised with appointed safety representatives
You recognise one or more trade unions, and those unions have appointed safety representatives in writing for the employees they cover. SRSCR 1977 governs the whole workforce. HSCER 1996 does not apply.
2. Fully non-unionised
No recognised trade union, no appointed safety representatives. HSCER 1996 governs the whole workforce. You must decide whether to consult employees directly or through elected representatives of employee safety (RoES).
3. Partly unionised with mixed representation
A recognised trade union has appointed safety representatives, but only for part of your workforce — for example, only one site, one grade or one bargaining unit. SRSCR covers the represented group. HSCER covers everyone else in the same workplace. Two regimes operate side by side and you must satisfy both.
4. Recognised union but no safety rep appointed
This is the trap. Recognition is not the same as appointment. Until the union has actually appointed a named safety representative in writing for a group of employees, those employees are not "represented" for SRSCR purposes — and HSCER 1996 applies to them. Do not assume that recognition alone discharges the duty.
What "consult" means under either regime
Consultation under both regimes is statutory consultation: you must give employees or their representatives the information they need, listen to their views before you decide, and take those views into account. It is not the same as informing them after the fact, and it is not satisfied by a one-way memo or poster. The closed list of matters you must consult on under HSCER is set out below.
If your workforce shape changes — a union secures recognition, a safety representative resigns, or a new site opens with no union presence — review which regime covers which group. A shape change can pull employees from one regime into the other without anyone making an active decision.
Penalty for failing to consult
section 33 of the Health and Safety at Work etc. Act 1974,
with penalties set out in Schedule 3A of that Act. On summary
conviction the maximum penalty is an unlimited fine; on
conviction on indictment the maximum is an unlimited fine
and, for certain related offences, imprisonment. Both HSE
and the relevant local authority can investigate and serve
improvement notices for breach of HSCER 1996 in workplaces
within their respective enforcement remits.</p>