Health and Safety Committees: 9 Questions Before You Set One Up

A customer audit asks for evidence of worker consultation. Somebody forwards the intranet health and safety page and a copy of the staff newsletter. The auditor raises a non-conformity, and the response internally is that nobody knew a committee was required.

The confusion is understandable, because the law here comes in two layers that were written nineteen years apart and apply to different people in the same building. A committee is required in one narrow circumstance and optional in every other. Consultation, which is the thing a committee exists to deliver, is required always, of every employer, with no headcount threshold anywhere in it.

That asymmetry is where organisations go wrong in both directions. Some set up a committee nobody asked for and treat it as the whole duty. Others consult nobody and assume the absence of unions means the absence of an obligation. Here are nine questions that settle which position you are in, in the order worth asking them.

1. Does any of this apply to a professional services firm?

Yes, and there is no size threshold to hide behind.

Two instruments share the ground. The Safety Representatives and Safety Committees Regulations 1977 cover employees represented by safety representatives appointed by a recognised trade union. The Health and Safety (Consultation with Employees) Regulations 1996 cover everybody else, and they exist precisely because the earlier regime left non-unionised employees with no consultation rights at all until a European court said that would not do.

So the question is never whether you have a duty. It is which of the two you are discharging, and for whom. The HSE's guidance on worker involvement and the approved code L146 sit behind both.

2. Which regime covers our people?

Possibly both at once, which is the detail that catches mixed workforces.

Regulation 3 of the 1996 Regulations opens with the words "where there are employees who are not represented by safety representatives under the 1977 Regulations". It is a gap-filler, not an alternative. An organisation with a recognised union covering part of its workforce and nothing covering the rest runs the 1977 regime for the represented group and the 1996 regime for the others.

In most offices, chambers, brokerages and university professional-services teams there is no recognised union for the relevant group, so the 1996 Regulations do all the work and the committee provisions in the 1977 Regulations never engage.

3. So are we actually required to have a committee?

Only on request, and only from one direction.

Regulation 9 of the 1977 Regulations is the only provision in either instrument that compels a committee. Where at least two safety representatives request one in writing, the employer must establish it within three months. The employer must also consult the representatives who asked and the representatives of any recognised union whose members work in a covered workplace, and must post a notice stating the committee's composition and the workplaces it covers where employees can easily read it.

Three things follow. The trigger is two representatives, not two employees. The request must be in writing. And those representatives are union-appointed, so an organisation with no recognised union cannot receive a valid request and is never obliged to form a committee at all.

4. If we are not required to have one, what are we required to do?

Consult, by one of two mechanisms, and the choice is yours.

Regulation 4 lets the employer consult employees directly, or consult one or more people elected by a group of employees to represent it. Those elected people are representatives of employee safety, and where you use them you must tell each group who its representatives are.

Direct consultation is perfectly lawful and often the better fit below about fifty people. Above that it becomes unwieldy, which is usually the point at which a voluntary committee starts to make sense as the vehicle rather than the duty.

5. What exactly do we have to consult on?

Five matters, named in regulation 3, and the consultation has to happen "in good time".

The list is the introduction of any measure that could substantially affect the employees' safety, the arrangements for appointing the people who provide competent assistance, the health and safety information the employer must provide by law, the planning and organisation of any required training, and the health and safety consequences of introducing new technology.

That fourth and fifth items are the ones professional firms overlook. New technology is read narrowly as plant, when a workflow tool that changes how long people sit at a screen, or a system that monitors output, falls squarely inside it. And the second item connects to your competent person arrangement: how you appoint it is itself a consultable matter, not purely a management decision.

6. Does our intranet page count?

No, and this is the single most common failure.

The 1996 Regulations treat information and consultation as separate duties in separate regulations. Regulation 5 requires the employer to provide information. Regulation 3 requires consultation. Publishing a policy, circulating a newsletter or running an all-hands briefing discharges the first and does nothing for the second, because consultation implies the opportunity to influence a decision before it is taken.

The practical test an auditor applies is whether anything changed. A consultation record that shows a matter raised, considered and either actioned or answered is evidence. A list of communications sent is not, which is why this row fails in supplier questionnaires more reliably than almost any other.

7. What do representatives get, and who pays?

More than most organisations budget for, and the obligations are specific.

Regulation 6 gives representatives of employee safety three functions: making representations on potential hazards and dangerous occurrences affecting the people they represent, making representations on general health and safety matters affecting them, and representing them in workplace consultations with HSE inspectors.

Regulation 7 then sets out what the employer must provide. Training on their functions that is reasonable in the circumstances, with the employer meeting the reasonable costs including travel and subsistence. Paid time off during working hours both to carry out the functions and to attend the training. Reasonable paid time off for candidates standing for election. And any other facilities and assistance the representative reasonably needs.

An organisation that elects representatives and then gives them neither training nor time has created a paper mechanism and taken on a new liability. Where the health and safety training budget is set annually, this is a line that belongs in it.

8. What happens when a representative leaves or stops acting?

A tidy provision that nobody reads until it matters.

Regulation 4 prohibits the employer from continuing to consult someone as a representative of employee safety once any of four things happens: the person tells the employer they do not intend to represent the group, they are no longer employed in that group, the period they were elected for expires without re-election, or they become incapacitated from carrying out the functions. In each case the employer must tell the employees in that group.

The expiry limb is the live one. Representatives elected for a fixed term, never re-elected, and still listed on a notice three years later are not representatives, which means an organisation relying on them has not been consulting anybody.

9. What has to be recorded?

Less than you would expect, and more than most organisations keep.

Neither instrument prescribes minutes. What they do require is capable of being evidenced: who the representatives are and which group each covers, that the five matters were consulted on in good time, that training and time off were provided, and the notice of composition and coverage where regulation 9 applies.

Question	Short answer	Where it comes from
Does the duty apply?	Always, with no size threshold	1977 Regs or 1996 Regs, depending on representation
Which regime?	1996 Regs for anyone not union-represented	1996 Regs, reg 3 opening words
Must we have a committee?	Only on written request from two safety reps	1977 Regs, reg 9
If not, then what?	Consult directly, or via elected representatives	1996 Regs, reg 4
On what?	Five named matters, in good time	1996 Regs, reg 3
Is an intranet page enough?	No. Information and consultation are separate duties	1996 Regs, regs 3 and 5
What do reps get?	Training at the employer's cost, paid time off, facilities	1996 Regs, regs 6 and 7
When do reps lapse?	Four triggers, including an expired term	1996 Regs, reg 4
What is recorded?	Representatives, matters, timing, training, notice	Both instruments

Keeping that in one place alongside the assessments it refers to is a modest but real case for health and safety consultants and software working together rather than separately, because the consultation record is the one artefact that has to show a sequence over time rather than a current state. Periodic health and safety audits should test it by picking one decision and asking who was consulted before it was taken, which is a harder question than asking to see the policy.

Why this looks completely different abroad

Groups that export a UK consultation arrangement find it fails for an unexpected reason. It is not too weak. It is the wrong shape, because several countries mandate the body the UK makes optional.

Germany is the clearest case. Under section 11 of the Arbeitssicherheitsgesetz, an employer with more than twenty employees must form an occupational safety committee, with part-timers counted fractionally at 0.5 or 0.75 depending on their weekly hours. Its composition is prescribed rather than chosen: the employer or a nominee, two works council members designated by the works council, company doctors, occupational safety specialists and the safety delegates appointed under the social code. Its job is to advise on occupational safety and accident prevention, and it must meet at least once a quarter. The wider accident insurance framework coordinated by the DGUV sits around it.

Set that beside the UK position and the contrast is stark. A German office of thirty people must have a committee, with named categories of member, meeting four times a year. A British office of three hundred with no recognised union need never have one, provided it consults properly by another route. France goes further again, requiring a formal elected body once headcount thresholds are passed.

So the workable pattern is the familiar one: one methodology for identifying what gets consulted on, and the local body, threshold, composition and meeting frequency attached per country. A group that writes "we consult our employees" into a global policy and leaves it there has satisfied nobody's regulator, including ours.

Where Arinite fits

Arinite has spent 15+ years setting up consultation arrangements in organisations with no union, no committee and no obvious place to start, which is the position most of our clients are in. We support 1,500+ businesses in 50+ countries and protect 100,000+ employees, with 95%+ client retention. Our health and safety consultants work extensively with offices, legal, insurance and education clients, and in a retained partnership the consultation record is something we maintain rather than reconstruct before an audit.

For multi-country groups, our global health and safety consultants apply the local threshold and composition rather than exporting a British arrangement, and our international health and safety consultants can tell you which of your entities is legally required to have a body it does not have.

Pick the last decision that affected how people work in your building and ask who was consulted before it was made. Then book a free gap analysis and we will tell you in one call whether your arrangement is a mechanism or a mailing list.

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