Not all employers will have health and safety representatives in place, and nor are they required to. Employers must however consult on matters relating to the health and safety of their employees and clearly that includes matters arising from the current pandemic. The legal obligation on non-unionised employers arises from the Health and Safety (Consultation with Employees) Regulations 1996 and is to consult with employees or their representatives (known under this legislation as "representatives of employee safety"). HSE guidance suggests that most employers with 25 or less employees are likely to consult directly with employees rather than have appointed representatives but larger employers are not required to appoint representatives either.
If the employer decides not to consult with employees directly then the representatives of employee safety must be elected by the employees they are to represent for the purposes of consultation on health and safety. Unlike some other areas of the law, there are no set processes for election of health and safety representatives which makes putting them in place now more straight forward than might have been anticipated.
Where the employer recognises trade unions the position is slightly different. In this case the duty to consult with "safety representatives" arises from the Safety Representatives and Safety Committees Regulations 1977. Recognised trade unions may appoint safety representatives from amongst the employees it represents. Where at least two safety representatives request it in writing, an employer must establish a safety committee. The functions of the TU health and safety reps is broader than that of the representatives of employee safety, but both types of representative can make representations to employers on potential hazards and dangerous occurrences as well as general matters affecting the health and safety of the employees they represent.
Health and safety reps appointed by a trade union will have training arranged for them by their union - often this can be done online. However, employee elected representatives will require paid time off for training. It is not clear to what extent COVID-19 specific training would be required, but general guidance on appropriate training is available from the HSE.
So why should employers consider consulting with representatives rather than individual employees, particularly if they have not done so in the past? Given the consultation may well need to be carried out remotely, consulting with a smaller number of representatives is going to be considerably more straight forward than consulting with the whole workforce. Having representatives to organise and motivate colleagues to provide input may also improve the quality and quantity of input from the workforce.
Employers cannot decide who the employee representatives will be (assuming in the case of a non-unionised workplace the employer chooses not to consult with employees directly). This may contribute to employee confidence in the reps as having their best interests in mind. The law requires all employers to assess the risk of returning to work while the coronavirus outbreak continues, and to put steps in place to manage that risk. If, through consultation, the workplace health and safety reps believes employers are doing what they need to do to ensure the workplace is safe that will undoubtedly engender confidence in the workforce as a whole, confidence being a key factor in facilitating a successful return to the workplace.
Further resources are available from the HSE including Talking with your workers about preventing coronavirus, Working safely during the coronavirus (COVID-19) outbreak and Consulting workers on health and safety.