At present just under a quarter (23.5%) of UK employees are union members, although union density is much higher in the public sector (52%) than the private sector (13%). There is only one union confederation in the UK, the TUC, and individual unions are fully independent. More than half of trade unionists in the TUC are in the three largest unions, which have grown through mergers.

There are 6,754,197 union members in the UK, according to figures for 2019 and 2018 provided by the unions themselves.[1] Figures from the annual official Labour Force Survey, which excludes non-working members, show a total of 6,798,00, union members in employment in 2019, of whom 6,440,000 were employees.[2] (The closeness of the figures from the Labour Force Survey and the unions themselves reflects the fact, first, that the vast majority of union members are in employment – there is no tradition of unions having a large number of retired members – and second, that legislation passed in 2014 requires unions with more than 10,000 members to have their membership numbers certified by a qualified independent person.[3]

These membership figures mean that just under a quarter (23.5%) of all UK employees are union members. This is a very similar figure to that in the ICTWSS database of industrial relations statistics, which estimates union density at 23.4% in 2018.[4]

The vast majority – 5,421,895 in January 2020 – belong to the 48 unions affiliated to the TUC,[5] the only trade union confederation in Britain. The TUC does not operate in Northern Ireland. Unions operating in both Britain and Northern Ireland are frequently also affiliated to the Irish trade union confederation, the ICTU (see pages on Ireland) through the Northern Ireland Committee of the ICTU. In total the ICTU had 196,024 members in Northern Ireland on 31 December 2018.[6]

British unions are organised in a variety of ways. Some organise particular occupations such as teachers or radiographers, and, particularly in the finance industry, some just organise in a single company, such as Aegis, which covers the insurance and pensions group Aegon, or the NGSU for the Nationwide Building Society. However, the great majority of union members are now in large unions, formed by mergers, which have members in many sectors of the economy. Industry-based unions are now less common, with some industry specific unions, like the construction workers’ union UCATT and the broadcasting and entertainment union BECTU being absorbed by larger unions in recent years.[7]

The largest union in the UK is Unite, a union formed in May 2007 through the merger of the previously second and third largest unions, Amicus and the T&G. It had 1,200,303 members in January 2020, and they work in almost every sector of the economy, including motor manufacturing, printing, finance, road transport, and the health service. It is stronger in the private than the public sector, but it has at least 200,000 members in public services.

UNISON, the second largest union with 1,171,000 members, organises primarily in the public services, although because of privatisation it has substantial membership in private companies. The third largest union is the GMB, with 597,147 members. Like Unite it is a general union with members in several industries and in both the public and private sectors, although they are more likely to be manual workers.

These three unions account for 55% of total TUC membership and 44% of total union membership.

The next group of TUC affiliated unions by size are smaller and are more linked to specific industries and occupations. There are seven each with more than 100,000 members: the NEU teaching union (439,038 members), which was formed by a merger of two teaching unions, the NUT and the ATL in 2018; USDAW (411,435), which primarily organises shop workers but has members in other areas; another teaching union, the NASUWT (284,062); the CWU (198,235), which covers postal and telecommunications workers, although not management grades; PCS (177,361), which primarily organises civil servants in central government; Prospect (143,776), which organises specialists and managers, many in central government; and the UCU (112,765), whose membership is academic staff in higher education and vocational colleges.

The remaining 38 unions range in size from the RMT rail and transport union, with 85,861 members, to the miners’ union, the NUM, which was once one of the most powerful of the UK’s union but now has just 241 members. There are 14 TUC affiliates with between 85,000 and 20,000 members, 11 with few that 20,000 but more than 5,000 members and 13 with fewer than 5,000 members.

Individual unions affiliated to the TUC are independent in terms of their decision-making, although the TUC remains a key channel for discussions with government.

The 48 TUC affiliates are among 139 union operating in Britain in 2019, according to figures from the Certification Officer, the head of the government agency responsible for monitoring union compliance with legislation. The remaining 91 union are mostly very small: 56 non-TUC union have fewer than 1,000 members and another 21 have more than 1,000 but fewer than 2,500. However, although the vast majority of non-TUC unions are small, there two large unions, which are not affiliated to the TUC – or any other body. These are the RCN, which organises nurses and has 458,142 members, making it the fourth largest union in the country, and the BMA, which organises doctors and has 155,792.[8] Police officers, who by law are prohibited from joining a trade union or taking industrial action, are organised in different staff associations based on rank and geography. The largest is the Police Federation of England and Wales for rank-and-file police, which has around 130,000 members.[9]

Around half the membership of the TUC belongs to unions that are affiliated to the Labour Party, although the TUC itself is not affiliated. The exceptions are largely among unions representing professional staff, such as teachers, some health staff and civil servants. Affiliated unions are present and vote at Party conferences and are represented on the executive committee of the Labour Party as well as being the single largest source of Labour Party funds. However, as a result of rule changes, unions now have much less formal influence on Party policy than in the past.

Trade unions lost membership heavily during the 1980s and the first half of the 1990s, largely because of changes in the structure of the workforce. However, in the late 1990s, the sharp loss of members was halted and since that time the proportion of employees who are union members has declined more slowly. Over the 20 years from 1999, the Labour Force Survey figures show union membership among employees declining by a total of 7.7%, from 6,978,000 in 1999 to 6,440,000 in 2019, while union density on fell by 6.2% percentage points – down from 29.7% to 23.5% - over the same period. In the three years 2017 to 2019, trade union membership has increased year by year and, in 2019, it was 210,000 higher than it had been in 2016, although with increasing number of employees in the economy over this period, this meant that union density was the same in 2019 as it had been in 2016.

Since the 1990s, the TUC and individual unions have devoted greater resources to recruiting and organising new members. One example was the creation of the TUC Organising Academy in 1998, which hoped to “encourage unions to invest more heavily in organising activity and to attract new people to work in the trade union movement as organisers, policy makers and officials”. The Academy trained 400 specialist organisers, although its courses are now only offered to trade union officials.[10] Other examples include: Unite’s “100% campaign” aimed at maximising membership in workplaces where Unite already negotiates with employers and Unison’s network of local organisers, who are employed to “recruit new members and work with regional organising teams, mapping membership density and campaigning to develop new activists”.[11]

Trade union density is much higher in the public sector (52.3% in 2019) than in the private sector (13.3% in 2019), and, as a result, there are more public sector trade unionists (3.77 million in 2019) than private sector trade unionists (2.67 million). This is despite the fact that the private sector employs three times many as the private sector.[12]

It is the higher proportion of women working in the public sector that largely explains why a higher proportion of women are union members than men – 27.0% as opposed to 20.1% (2019 figures). This gap in union density of almost seven percentage points is present. even though in the private sector men’s union density is higher at 13.9% than women’s at 12.5%, and in the public sector there is only a relatively small difference in favour of women, with 53.9% of women and 49.0% of men being union members. The overall result is that there are almost a million more women who are trade union members than men: 3.69 million women and 2.75 million men.

[1] This is made up of 6,695,098 union members in unions with headquarters in Great Britain – Annual Report of the Certification Officer 2019-20, June 2020, plus 47,592 in unions based in Northern Ireland, and a further 11,507 in unions based in the Republic of Ireland – Annual Report of the Certification Officer for Northern Ireland 2018-19, June 2020. The figures are for the end of December 2018 for Norther Ireland and, in most cases, for the end of December 2019 for unions based in Great Britain

[2] This and all figures for union density in this section come Trade Union Membership, UK 1995-2019: Statistical Bulletin, Department for Business, Energy and Industrial Strategy, May 2020

https://www.gov.uk/government/statistics/trade-union-statistics-2019 (Accessed 08.01.2021)

[3] Transparency of Lobbying, Non-party campaigning and Trade Union Administration Act 2014

[4] Jelle Visser, ICTWSS Data base. Version 6.1. Amsterdam: Amsterdam Institute for Advanced Labour Studies AIAS. October 2019

[5] Figures for TUC and TUC affiliated unions are from TUC Directory 2021

[6] Report of Executive Council to the Biennial Delegate Conference of the Irish Congress of Trade Unions, July 2019, https://www.ictu.ie/download/pdf/bdc_2019_report.pdf (Accessed 08.01.2021)

[7] For an analysis of the situation and development of trade unions in the UK see Dependence on a hostile state: UK trade unions before and after Brexit by Genevieve Coderre-LaPalme and Ian Greer in Rough waters: European trade unions in a time of crises, edited by Steffen Lehndorff, Heiner Dribbusch and Thorsten Schulten, ETUI, 2018

[8] Annual Report of the Certification Officer 2019-20

[9] Police Federation website https://www.polfed.org/about-us/ (Accessed 08.01.2021)

[10] 10 years on: the impact of the Organising Academy on the union movement by Jane Holgate and Melanie Simms, TUC General Council Report 2011 and TUC Organising Academy 2019 Course Programme, 2018 https://www.tuc.org.uk/resource/tuc-organising-academy-2019-course-programme (Accessed 08.01.2021)

[11] Unite leaflet http://unitealliance.org/wp-content/uploads/2017/10/Organising-leaflet.pdf and Unison website https://www.unison.org.uk/about/jobs/2019/08/eastern-region-local-organiser-7/ (Accessed 08.01.2021)

[12] Trade Union Membership, UK 1995-2019: Statistical Bulletin, Department for Business, Energy and Industrial Strategy, May 2020

Only a minority of employees in the UK are covered by collective bargaining, with private sector employees, where the key bargaining level is the company or the workplace, much less likely to be covered than those working in the public sector, where industry level bargaining is more important.

The framework

The pay and conditions of most employees in the UK are not collectively negotiated, as two sets of official figures indicate. However, there are differences between the two. Figures from the Labour Force Survey show that just over a quarter (26.9%) of employees were covered by collective bargaining in 2019. In contrast, a second survey, which looks at hours and earnings, estimates that in 2019 almost four out of 10 employees (39.2%) had their “pay set with reference to an agreement affecting more than one employee”, in other words, in most cases, though collective bargaining.[1]

The UK Office for National Statistics (ONS), which undertakes both surveys, explains that while there are some minor differences between the two surveys – the question is slightly broader in the ASHE earnings and hours survey, and the ASHE figures are for jobs not employees – the main difference is that the Labour Force Survey asks employees, while the ASHE survey asks employers. As employees may be less aware of how their pay is set, the ONS concludes that the ASHE survey, which was completed by more than 180,000 employers in 2019, “may gave an more accurate picture of the coverage of such agreements.”[2]

A common conclusion from both sets of statistics is that bargaining is much more prevalent in the public than in the private sector. The ASHE figures show that in 2019 90.6% of public sector employees were covered by some form of collective bargaining, compared with 21.1% in the private sector and 50.2% in the much smaller “not for profit sector”. The comparable figures from the Labour Force Survey are 60.1% in the public sector and 15.1% in the private sector; there are no Labour Force Survey “not for profit figures”.

The ASHE figures also provide a breakdown between different levels of bargaining, and there are clear differences between the pattern in the public and the private sectors.

When bargaining occurs in the private sector, its most important level is at the company or individual workplace, covering more than three quarters of private sector employees, whose pay is set through collective agreements. The ASHE figures show that 9.5% of private sector employees have their pay set by agreements signed at organisation level, typically a company in the private sector, and for 6.8% it is a workplace level agreement that sets pay. Industries where a high proportion of employees are covered by company-level agreements include the privatised utilities, gas, electricity, water and telecommunications, and finance. Agreements at workplace level are more common in manufacturing. For, example, many companies operating in engineering and food manufacturing have separate agreements for each of their production sites.

There is still industry-level bargaining in some private sector industries, particularly in construction and some parts of the arts and entertainment industries. The annual survey of bargaining, published each year by the union-linked Labour Research Department, listed 33 industry-level agreements current in 2019, of which the majority were either in construction (14 agreements) or theatre and film production (seven agreements).[3] However, this level of bargaining remains the exception. The ASHE figures show that only 2.7% of private sector employees have their pay set by industry-level agreements signed at national level, with another 0.1% at sub-national level, for example for Scotland or Northern Ireland.

A combined approach, where the industry-level agreement is supplemented by an agreement at a more local level and which was once found widely, now only accounts for 1.9% of private sector employees.

It is also important to point out that, employers are not bound by an agreement signed by an employers' federation even if they are members of it. This means that there is no mechanism for collective agreements to be extended to non-signatory employers.

Overall, therefore, around eight out of 10 private sector employees are not covered by collective bargaining and those that are have their terms and conditions set by company and workplace-level agreements rather than those signed at industry level.

The situation in the public sector in the public sector is almost exactly the reverse. The ASHE figures show that nine out of 10 (90.6%) public sector employees are covered by collective bargaining, and that for most – 70.9% of the total – that bargaining is nationwide at industry level. Examples of nationwide agreements, although often with separate agreements for Scotland and Norther Ireland, and sometimes Wales as well, are those for staff in the health service, local government staff, firefighters and teachers, although some schools can theoretically opt-out from the national deal.

Many of these groups, such as teachers, those working in the health service, and other groups including the prison service and the police, are covered by pay review bodies, rather than pure collective bargaining. These pay review bodies make recommendations on pay to the government, which are then normally approved. However, this is not always the case. In 2014-15 a pay review body recommendation on pay in the health service was not accepted by government, resulting in industrial action.[4]

There are some public sector employers, which bargain at the level of a single organisation. The civil service, for example, pays different rates in different government departments. The ASHE figures indicate that 10.5% of public sector workers have their pay set at organisational level and another 2.0% at workplace level (which may be the same as the organisation in some smaller bodies. Finally, there are 6.7% of public sector workers whose pay is determined by a national agreement supplemented by an agreement at a more local level. It seems likely that pay arrangements for vocation (further education) colleges fall into this category, as the employers’ association typically make a recommendation on the pay increase, but the implementation is left to local colleges.

Some aspects of bargaining are common across both the public and private sectors. For example, sometimes there are separate agreements for different grades of worker, most typically for manual and non-manual workers. However, there is no requirement for this – for example, there are no differences between the two groups in terms of their legal status or their social security contributions – and the practice has become less frequent. For example, most staff in local government moved onto a so-called “single status” agreement in 1997, although some workers are still not included, and the main agreement in the health service became single status in 2004.[5]

There is no legal requirement for the employer to negotiate with the union except where there has been a legally binding decision that the unions should be “recognised” for bargaining (see section on Workplace representation). In these cases, the union has the right to bargain over pay, hours and holidays. However, such cases are rare and generally it is the balance of forces between union and employer at the workplace that determines whether bargaining takes place.

At national level, the TUC has not been involved in negotiations about pay since the end of the 1970s, when there were a series of national deals. There is also no tradition of negotiations between the TUC and the national level employers’ body, the CBI, on other issues. However, in 2003 the two sides reached agreement on how the EU’s information and consultation directive should be implemented (see section on Workplace representation), and in 2008 there was an agreement between the TUC and CBI on agency workers, covering the implementation of an EU directive on agency workers.[6] However, such agreements are the exception.

There is no tripartite forum for social dialogue in the UK.

Who negotiates and when?

Bargaining is conducted by trade unions and employers. The union side may be made up of full-time officials, workplace representatives or a mix of both. Local union representatives are now much more likely to be involved in collective bargaining. The employers' side can be the individual employer or, if at industry level, the employers' association.

There will sometimes be several unions represented on the union side, who normally will have agreed their position together in advance. For example, the main agreement in the health service, Agenda for Change, has nine signatory unions and many agreements in manufacturing are signed by two general unions Unite and the GMB. However, often there will be only one union present, because past union mergers have resulted in a single union representing the whole workforce.

Collective agreements do not have to run for a specific period although the most common pattern is that they run for a year. Figures from the Payline database of collective agreements, maintained by the Labour Research Department, show that of 1,386 collective monitored agreements which were current in 2019 63% lasted 12 months, 21% ran for 24 months and 12% for 36 months. There were also a few four- and five-year deals, with the longest lasting 10 years.[7] Agreements lasting for more than a year normally have regular staged increases which are linked to the price index. Anniversary dates are spread throughout the year, although clustered in January and April.

Usually, union representatives will seek to negotiate on pay every time there are negotiations, but may negotiate over other improvements, for example, holidays, sick pay and so on, less frequently.

The subject of the negotiations

Some negotiations cover all aspects of pay and conditions, but others are limited to only a few areas, principally pay, with the employer refusing to negotiate about many terms of employment. Even where pay is subject to negotiations, a large number of agreements, particularly for non-manual workers, give employers considerable flexibility by linking pay increases for individual employees to a subjective assessment of their performance.

The most recent major survey of workplace employee relations in the UK, the 2011 WERS survey, examined the situation in workplaces where the employer was willing to negotiate with the union – in other words, where the union was “recognised” (see section on Workplace representation). It found that in just over half of these workplaces (54%) managers said that they normally negotiated with the union about pay, 42% said that they normally negotiated about hours and 43% that they normally negotiated about holidays. The proportions negotiating about other areas, such as pensions, training, grievance procedures and health and safety, were considerably lower, although unions were often consulted on these issues.[8]

The WERS list of topics did not cover all the areas which may be subject to negotiation. Negotiations may also deal with other areas, such as the facilities or time off provided to the union.

The UK has a national minimum wage which is set by the government on the advice of the Low Pay Commission which brings together representatives of the employers (four members), the unions (three) as well as independent academics (two). This advice on the level at which the minimum wage should be set each year, is drawn up by the Low Pay Commission, taking account of the government remit it receives. In 2019, the government remit, which from 2016 had aimed at a rate set at 60% of median earnings by 2020 was changed to a rate set at two-thirds (66.7%) of earnings by 2024.

[1] For a detailed examination of collective bargaining in the UK see United Kingdom: a long-term assault on collective bargaining by Jeremy Waddington in Collective bargaining in Europe: towards an endgame, edited by Torsten Müller, Kurt Vandaele and Jeremy Waddington, ETUI, 2019

[2] Trade Union Membership, UK 1995-2019: Statistical Bulletin, Department for Business, Energy and Industrial Strategy, May 2020, this largely relies on the Labour Force Survey data but also includes the ASHE figures https://www.gov.uk/government/statistics/trade-union-statistics-2019 (Accessed 08.01.2021)

[3] Workplace Report October 2019, Labour Research Department https://www.lrdpublications.org.uk/publications.php?pub=WR&iss=1996&id=idm292496 (Accessed 08.01.2021)

[4] NHS staff strike in dispute over pay, Nick Triggle, 13 October 2014, BBC News https://www.bbc.co.uk/news/health-29560083 (Accessed 08.01.2021)

[5] Local government Association website https://local.gov.uk/our-support/workforce-and-hr-support/local-government-services and NHS Employers website https://www.nhsemployers.org/pay-pensions-and-reward/2018-contract-refresh/questions-and-answers#:~:text=Agenda%20for%20Change%20was%20introduced,in%20a%20number%20of%20areas. (Accessed 08.01.2021)

[6] Agency workers: joint declaration by government, the CBI and the TUC https://www.tuc.org.uk/research-analysis/reports/agency-workers-joint-declaration-government-cbi-and-tuc (Accessed 08.01.2021)

[7] LRD Payline: specific calculations

[8] Employment relations in the shadow of the recession: Findings from The 2011 Workplace Employment Relations Study by Brigid van Wanrooy, Helen Bewley, Alex Bryson, John Forth, Stephanie Freeth, Lucy Stokes and Stephen Wood, Palgrave Macmillan, 2013 Table 5.4

There is no common structure for employee representation in the UK and in many workplaces it does not exist. Unions are the most common way that employees are represented, and since 1999 they have been legally able to compel employers to deal with them, but only if they have sufficient support. Most non-union workplaces have no employee representation, and the regulations implementing the EU directive on information and consultation have only had a limited impact.

There is no formal legal mechanism providing for on-going workplace representation in the UK. In contrast to some EU countries there is no structure of works councils elected by all employees, and there is also no legislation or system of legally binding collective agreements which give wide ranging powers to local union organisations to represent all employees.

This means that the structure and influence of employee workplace representation is very varied. The position has not been fundamentally changed by the legislation, implementing the EU information and consultation directive, which came into effect for organisations with more than 50 employees in April 2008 (larger organisations were affected earlier), as it also does not set out a structure for employee representation (see below).

In most cases, the structure of employee representation at work depends on a combination of the strength of the union at the workplace and the wishes of the employer.

In many workplaces, the only representation will be through the union, and, where the union is recognised, this may involve negotiations on pay and conditions, as well as a union role in disciplinary and grievance procedures and health and safety, and consultation with the union on issues like redundancies and business transfers.

In other workplaces, employers will have decided to set up their own structures for employee representation, which are likely primarily to have a consultative role, but may also deal with staff grievances. These bodies have a variety of names, such as staff or colleague forum, company council or consultative committee, and they are likely to discuss issues such as training, pay, health and safety, performance appraisal and staffing arrangements.

In some workplaces these structures may coexist, with both union and non-union representatives present. This may be because the employer deals with the union for some members of staff, and with a non-union structure for the others, but it may also mean that there is a structure, often called a joint consultative committee, which involves both union and non-union members. (A study of joint consultative committees in 2014 found that their “incidence … is strongly associated with both the presence of union members in the workplace and trade union recognition”.[1])

The most recent substantial UK survey of employee representation is the Workplace Employment Relations Study (WERS11), which was carried out in 2011 and 2012 and examined at workplaces with five or more employees. It provided a breakdown by number of employees of the different forms of on-site employee representation:

• only union representatives present on site (28%);
• both union and non-union representatives present on site (7%);
• only non-union representatives present on site (9%); and
• no employee representatives on site (55%). [2]

These figures, which show that, where employee representation exists, it is most likely to be provided by the union, are in line with the annual figures from the Labour Force Survey which asks whether union members are present at the workplace (a wider question than whether there are union representatives). In 2019, almost half (48.7%) of all employees stated that was the case, only slightly down on the 52.7%, who reported a union presence in 2012.[3]

However, both the 2019 Labour Force Survey and the WERS11 figures make it clear that there is a substantial difference between the private and public sectors. The Labour Force Survey figures show that almost nine out of 10 (88.2%) of employees in the public sector were in workplaces, where unions were present in 2019, but only around a third (32.2%) of employees in the private sector. The WERS11 figures show that union recognition, the most effective form of union representation (see below) was much more likely in public sector (92% of workplaces) than in private manufacturing (9%) or private services (12%).[4]

Union recognition means that the employer has agreed to consult or negotiate with the union or unions over issues affecting the workforce. (It normally means that the employer will negotiate with the union on pay and conditions but there are some cases where unions are only recognised by the employer for individual grievance and disciplinary cases.) In addition, if the union is recognised, it has certain rights (see below).

Until 1999, union recognition was a matter of the balance of power between the unions and the employer, with the employer legally able to refuse to recognise a union, no matter how many members the union had. However, legislation passed in that year provides a legal mechanism which can compel employers to recognise unions. Unions must prove to an independent body, the Central Arbitration Committee (CAC) that a majority of employees in a “bargaining unit”, which can be a workplace, several workplaces, or part of a workplace, want a union to represent them. Unions can do this either by showing that more than half the employees are union members, or by winning the support for recognition of a majority of employees in a ballot, although this must also be equivalent to at least 40% of all employees in the bargaining unit. The legislation only applies to employers with 21 or more employees.

In the 20 years since the procedure started, unions have submitted 1,166 cases to the CAC, with 335 resulting in recognition (167 involving a successful ballot). [5] However, this may be an underestimate of the impact of the legislation, as often, where unions sought recognition and had substantial membership, they were able to achieve it on a voluntary basis, as the employer was aware that the legal avenue was open to the union if recognition were refused.

Where there are no unions, there is no general right or requirement to have employee representatives, although there are specific EU directives which require employee representatives to be informed or consulted, as on redundancies, business transfers and health and safety. In workplaces without unions, UK legislation implements these directives by requiring the employer either to inform and consult existing employee representatives, if these are present, or to inform and consult representatives specially elected for that purpose. It is important to emphasise that in none of these cases are there any precise rules in the legislation as to how this representation should be structured.

In addition, there are the Information and Consultation of Employees Regulations 2004 (ICE) implementing the EU information and consultation directive (2002/14/EC), which give employees in undertakings with more than 50 employees the right to be informed and consulted on developments in the business in particular in relation to employment.

However, the regulations do not require employers to establish a structure for information and consultation if one does not exist. The process must be either initiated by the employer or by a request of 2% of the workforce, with a minimum of 15 employees. (This threshold was reduced from 10% of the workforce in April 2020.) Once this has happened, the employer and employee representatives are required to start negotiations on an agreement on information and consultation, with fallback arrangements on setting up a committee if no agreement is reached. But these negotiations can be blocked in some cases if there is already a valid pre-existing agreement on information and consultation in place. They will also never start unless either the employer or 2% of the workforce ask for an information and consultation mechanism to be set up.

The evidence so far is that the regulations have not produced major changes in quantitative terms in employee representation at the workplace. In fact, the WERS 2011 survey showed a very slight fall in the proportion of workplaces and employees covered by on-site joint consultative committees compared with seven years earlier. The proportion covered dipped from 9% of workplaces and 38% of employees in 2004 before the regulations came into effect to 8% and 37% of employees in 2011, by which time they had been in effect for three years.[6] A later academic study said that the ICE regulations had had a “disappointingly limited impact “. and stated that “the initiative to establish or relaunch consultation bodies was almost invariably management’s”.[7] It remains to be seen whether the reduction in the threshold required to initiate the process from 10% to 2% of the workforce will change the situation.

The fact that there is no legal obligation to set up employee representation at the workplace in the UK, is reflected in the results of Eurofound’s 2013 and 2019 European Company Surveys. In 2013, 16% of establishments in UK with at least 10 employees had employee representation, either recognised union representation or a joint consultative committee. This was only half the EU28 average for employee representation of 32%.[8]

The comparable figure for 2019 in the UK is slightly higher at 20%, but this may partially reflect differences in how the information was collected and a slight change in the question asked. The UK is again below the EU27 average of 29%. As elsewhere in Europe, larger organisations are more likely to have such a structure than smaller ones. The 2019 survey shows that 58% of establishments with more than 250 employees had employee representation, and that in those with between 50 and 249 employees, the percentage of workplaces with representation was 30%. In smaller workplaces in the UK, those with between 10 and 49 employees, the survey indicates that only around one in six (17%) had employee representation.

Numbers and structure

There are no legal rules or guidance on the number of workplace union representatives who should be appointed. Unions aim to have at least one union representative – who may be known as shop stewards, workplace representatives, workplace stewards or staff representatives – in each workplace and department, with more in larger departments and where members work shifts. Unions are also increasingly trying to have workplace union representatives with specific roles, covering safety, equality, learning and, in some unions, the environment. Safety representatives and learning representatives also have some statutory time-off rights.

In larger workplaces, union representatives may come together as a shop stewards' committee (SSC) and elect a spokesperson, often known as a convenor or senior shop steward. Where there is more than one union at the workplace, representatives from different unions may come together to form a joint committee. This is sometimes known as a joint shop stewards' committee (JSSC) but also has many other names such as office or works committee. The structures are informal and can vary greatly from workplace to workplace.

There may also be a joint committee with the employer, which, as already noted, is often called a joint consultative committee. This can exist both in workplaces where unions are recognised and those where they are not. However, where there is such a body, there are no rules or guidance as to its size.

There are also no rules on the number of members of non-union representative structures, where these exist. However, a recent study by the CIPD, a body for human resources professionals, which included four case studies of organisations with non-union representative bodies indicated the extent of possible variation. The cases ranged from the DIY retailer, B&Q, which has multi-tiered “People’s Forum” with store-level, region-level and national forums, covering 22,000 staff, to the “Innovation Forum” with five to seven members for the 50 staff, employed at WorldSkills UK, an organisation providing careers advice.[9]

The only specific rules on numbers and structures are in the ICE regulations, introduced to comply with the EU information and consultation directive (2002/14/EC). These regulations apply to all undertakings, whatever their status and whether or not they are run for profit, provided they have at least 50 employees. This is calculated on the basis of the average number of employees over the previous 12 months. Employees who work 75 hours a month or fewer (approximately 3.5 hours a day) can be counted as half an employee, if the employer wishes. All employees are included in this calculation, irrespective of their position in the company (senior managers are not excluded), but agency workers are not included as they are not employed by the undertaking (Regulation 4, ICE).

As already noted, these regulations only come into effect at the request of either the employees or the employer, and the intention is that the arrangements should be negotiated. However, where the fall-back arrangements are used, they state that there should be one representative for every 50 employees or part thereof on an information and consultation committee, with a minimum of two members and a maximum of 25 (Regulation 19, ICE).

Tasks and rights

In organisations where unions are recognised, workplace union representatives, whether they are called shop stewards or have some other name, combine a variety of roles.

The TUC in its Workplace Manual lists the following tasks for workplace union representatives:

• recruiting members into the union and organising them around workplace issues;
• talking to members about workplace issues, advising them and keeping them informed of the latest developments;
• representing members who have problems;
• branch work and the wider union; and
• negotiations with the employer.[10]

The references in this list of tasks to internal union priorities – branches are local union groups in the UK – reflects the fact that these are union structures. The obligations of workplace union representatives are limited to union members. They have no responsibility for other employees.

In practice, a survey carried out for the TUC in 2019 and 2020 found that supporting individual union members in disciplinary and grievance procedures was the task that workplace union representatives spent most time on and almost half the respondents (47%) said this was their most important issue.[11]

The workplace union representative will normally be the first port of call for a union member facing problems at work. They are usually responsible for pursuing grievances and complaints on behalf of members of the union. They will also act as an advocate for members who are facing disciplinary action by the employer, although often, if they are unsuccessful, the employer’s procedures will allow for the involvement of a full-time officer of the union. Employees invited by their employer to attend a disciplinary or grievance hearing have a legal right to be accompanied either by a full-time union official (an employee of the union) or by a certified lay official (someone the union has trained to accompany individuals to such hearings), or by a fellow employee. This right to be accompanied by a full-time or lay union representative applies irrespective of whether the union is recognised at the workplace (Employment Relations Act 1999 Section 10).

The WERS11 survey also found that discipline and grievance was at the top of the list of issues union representatives spent time on, with 78% saying they spent time on this. It was followed by health and safety (69%), rates of pay (61%), pension entitlements (55%) staffing levels and hours of work (both tied on 54%).[12]

These are average figures, and there are differences in the balance of tasks carried out by workplace union representatives depending on the circumstances of the workplace. In many workplaces in the private sector negotiating on pay and conditions will be an important element of their activities, as, in the private sector, the most important level of collective bargaining is that of the company or individual workplace (see section on Collective bargaining). Local union representatives are less likely to be directly involved in pay bargaining in the public sector, although they may deal with the local implementation of industry-level deals.

However, it is important to recognise that there is no legal requirement for the employer to negotiate with the union except where there has been a legally binding decision that the unions should be “recognised” for bargaining (see above).

However, where unions are recognised, not just where there is a legal binding decision to recognise the union, the employer is obliged to inform and consult them on collective redundancies (20 or more employees being made redundant over the course of 90 days) and the business transfers (Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) Section 188 onwards for redundancy and Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) Regulations 13 and 14 for business transfers). Both these obligations are the result of EU directives, on redundancy (98/59/EC) and the transfer of undertakings (2001/23/EC)

In the case of collective redundancies, the employer must provide the union following with the following information in writing:

• reason(s) for the redundancies;
• number and descriptions of employees proposed to be made redundant;
• total number of employees of any description;
• proposed selection procedure;
• proposed method for carrying out redundancy dismissals including timescale;
• proposals for calculating redundancy pay, if it is to exceed the legal minimum;
• the number of temporary agency workers working for the employer;
• where those agency workers are working; and
• what types of work they are carrying out.

Comparable information must be provided in the case of business transfers.

For both collective redundancies and business transfers, the information must be sufficient to allow effective consultation to take place. Consultation must begin “in good time” and for larger collective redundancies (100 or more employees) it must begin at least 45 days before the redundancies take effect; for redundancies involving between 20 and 99 employees it must start at least 30 days beforehand. There is no minimum period for consultation in the case of business transfers, but unions must be involved as early as practically possible, and for business transfers the requirement to consult begins when just one employee is affected.

The consultation must be meaningful and must be undertaken by the employer “with a view to reaching agreement” with the union. However, there is nothing in the legislation that requires the two sides to reach agreement, and the final decision lies with the employer.

Other consultation rights exercised by recognised unions include the right of union safety representatives to be consulted on health and safety issues (Health and Safety at Work Act 1974, Section 2), and to be consulted on some limited issues related to pensions (The Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 Regulation 12).

In the relatively few cases where unions have used the information and consultation provisions resulting from the EU directive on information and consultation (transposed in the UK through the ICE Regulations), the unions can reach agreement with the employer on the issues on which they wish to be informed and consulted. However, the standard provisions, which apply if no agreement is concluded, state (ICE Regulation 20) that representatives must be:

• informed about the recent and probable development of the undertaking’s activities and economic situation;
• informed and consulted about the situation, structure and probable development of employment within the undertaking and on any planned measures, particularly, where employment may be threatened; and
• informed and consulted about decisions likely to lead to substantial changes in work organisation or in contractual relations.

In addition to consultation rights, in workplaces where unions are recognised, union representatives have the right to information from their employer which is needed for collective bargaining (TULRCA Section 181). This is information:

• without which representatives would be impeded in carrying out collective bargaining; or
• which, in accordance with good industrial relations practice, should be disclosed.

In practice, this typically involves details of pay rates and pay structures.

In workplaces where unions are not recognised, and employee representation is through non-union structures, the tasks and rights of the representatives will be as decided by the employer, although non-union representatives may have a legal right to be consulted on redundancies and business transfers, where they occur. However, it must be clear that they are authorised to negotiate with the employer, and if this is not the cases, special representatives must be elected from among those affected to deal with the redundancies or business transfer.

If an agreement has been reached with the employer on information and consultation, using the ICE Regulations (see above) non-union representatives may benefit from these rights.

Where there is no recognised union, employers must still consult employees on health and safety issues. This can either be done directly or through elected representatives. If representatives are to be elected, the employer must make arrangements for elections of “representatives of employee safety” (ROES) by the group of employees with whom they work (Health and Safety (Consultation with Employees) Regulations 1996 Regulation 4).

In practice, the WERS 2011 survey found that training was the issue on which the largest number of non-union representatives were involved – 58% said they had spent time on this in the previous year. This was followed by rates of pay (52%) and health and safety (50%), performance appraisal (49%) and staffing levels (46%). Non-union representatives were much less likely to have been involved in disciplinary and grievance issues than union representatives. Only 44% of non-union representatives had spent time on this in the previous 12 months, compared with 78% of union representatives.[13]

Election and term of office

The methods for electing union representatives, who, of course, must be union members, vary from union to union.

Unite, the UK’s largest union states in its rules that members employed at each workplace “shall elect from amongst themselves” one or more representatives at a meeting in the meeting in the first three months of the year and the meeting to elect representatives should take place at least once every three years.[14]

The rules of the biggest public sector union, UNISON, provide for annual election for one or more stewards “for each work group or workplace by the members in that work group or workplace. However, the rules do not go into details on how this should be done.[15]

The rules of the GMB, the third largest union, do not stipulate the frequency of elections but provide more details on how the choice can be made:

• by a show of hands or a ballot by members at the workplace;
• by a show of hands at a branch meeting (a meeting of union members which may cover more than one workplace); or
• by appointment by a senior paid official (regional secretary) provided all the members concerned agree.[16]

As these rules indicate, there are few formal procedures around the choice of union representatives, although the rules of all three unions make it clear that once local representatives have been chosen their names must be passed on to higher levels in the union – to the regional offices in Unite and the GMB, and to the branch in UNISON.

The situation in other unions is similar with the union representative more typically being chosen by a show of hands rather than a secret ballot. They are normally chosen for a particular office or workshop, and where there is shift working there may be different shop stewards for different shifts. They are usually elected by the members in the area in which they work rather than by the workforce as a whole. Elections typically take place every year. In practice individuals may hold office for long periods. In some unions, the choice of the membership at the workplace must not just be passed on to a higher level in the union but must be endorsed by it. One reason for this is unions can also be held liable actions by their elected or appointed workplace representatives or shop stewards when carrying out union business, as a recent case made clear.[17]

The method for choosing non-union representatives and their period of office will normally be decided by the employer, although election is the most frequently used method.[18]

Where representatives are being chosen for the purposes of information and consultation, under the information and consultation regulations implementing the EU directive, the fallback arrangements state that they should be elected by a ballot of all employees (ICE Regulation 19). An independent ballot supervisor must be appointed to ensure that the ballot is fair and the employer should consult employees’ representatives (in many cases this will be the union) on the arrangements for the ballot (ICE Schedule 2). The ballot will normally be of all employees together, but the employer can decide to split the workforce into separate constituencies, if it “would better reflect the interests of the employees as a whole”. All employees, including senior managers, can vote in this election and all employees, again including senior managers, can stand. There are no nomination requirements, and no period of office is prescribed in the legislation.

Protection against dismissal

Dismissal and other forms of victimisation for trade union membership or activity are unlawful (TULRCA Sections 146 and 152), irrespective of whether the union is recognised. But union representatives have no specific protection against dismissal, and the code of practice from the government's conciliation and arbitration body Acas on disciplinary and grievance procedures recommends that the normal disciplinary procedure should be followed when an employer is considering taking action against a union representative. Nevertheless, it adds that “depending on the circumstances, however, it is advisable to discuss the matter at an early stage with an official employed by the union, after obtaining the employee’s agreement”.[19]

Non-union representatives only have specific protection against dismissal and victimisation, in as far as they are acting in relation to specific statutory rights – such as in cases of redundancy or business transfers.

Representatives appointed under the information and consultation regulations similarly have specific protection against their dismissal or detriment, if linked to the performance of their functions or the exercise of their rights (ICE Regulations 30 and 32).

Time off and other resources

Workplace union representatives, where unions are recognised, have a legal right to paid time off which is “reasonable in all the circumstances ” to carry out their duties as representatives and to receive appropriate training (TULRCA Section 168).

These duties relate to negotiations with the employer over terms and conditions or physical conditions of employment, recruitment, suspension, dismissal, work allocation, discipline, union membership, time off facilities and the machinery of negotiation and other procedures (set out in TULRCA Section 178 (2)). They also have a right to paid time off for statutory information and consultation duties concerning collective redundancies and TUPE transfers.

The law does not specify what is considered “reasonable” and the employer may refuse time off either if it is considered too frequent or too inconvenient at the time of the particular request. However, an Acas code of practice sets out the issues that both sides should consider.[20]

For the unions they are:

• the size of the organisation and the number of workers;
• the production process;
• the need to maintain a service to the public; and
• the need for safety and security at all times.

Employers, on the other hand, should consider the difficulties facing trade union representatives and members in ensuring effective representation and communications with different groups of workers, such as those working shifts, part time or in different locations.

The Acas codes states that it would be reasonable to provide paid time off to:

• prepare for negotiations, including attending relevant meetings;
• inform members of progress and outcomes; and
• prepare for meetings with the employer about matters for which the trade union has only representational rights.

It goes on to state that a good way to deal with this is through a formal “facilities agreement” setting out union rights to paid time, working facilities and training, and there are many examples of agreements of this sort.

The WERS 2011 survey provides some information on what happens in practice, although as the information relates to the most senior union representative in each workplace, the results do not reflect the position for all union representatives. The survey found that, on average, 17% of senior union representatives were fully freed from their normally duties and that senior union representatives spent an average of 13 hours a week on their role, although around half (49%) spent less than five hours a week.[21]

Paid time off for union duties, often called facility time has come under pressure from the government, which has introduced new reporting requirements for all employers in the public sector (Trade Union Facility Time Publication Requirements Regulations 2017). This requires employers, among other things to provide details of the total number of union representatives (both head count and full time equivalent), and the total amount of time representatives spent on facility time.

All trade union members, not just workplace union representatives are entitled to reasonable time of to take part in union activities, other than industrial action in workplaces where the union is recognised (TULRCA Section 170). However, this is not paid. Such activities could include attending union workplace meetings or meeting union officials to discuss workplace issues.

In workplaces with no union recognition there is no legal right to time off either for duties or for training, except in relation to specific statutory rights – such as in cases of redundancy or business transfers or under the regulations on information and consultation. The WERS11 Survey shows that non-union representatives spent an average of three hours a week on their duties.

The right of access to other facilities, both for union and non-union representatives, is limited to specific circumstances – dealing with health and safety, redundancy and business transfers. Union representatives have no general right to facilities to enable them to do their work and depend on reaching agreement with the employer for any facilities they have.

However, an Acas guide suggests that “employers should, where practical, make available to union representatives the facilities necessary for them to perform their duties efficiently and to communicate effectively with their members, other representatives and full-time officers.” Where resources permit the code states that these should include:

• accommodation for meetings;
• access to a telephone and other communication media used or permitted in the workplace such as email, intranet and internet;
• the use of noticeboards;
• an office, if the volume of work makes this necessary;
• confidential space where employees involved in a grievance or disciplinary matter can meet their representatives;
• access to members who work at a different location; and
• access to e-learning tools where computer facilities are available.[22]

The WERS 2011 survey indicates what happens in practice – at least in 2011 and 2012. Around three-quarters of senior union representatives had use of an office (74%), a telephone (76%), meeting rooms (78%) and a photocopier (77%). More than two-thirds had use of a computer (69%).

For non-union representatives, all the figures were higher: office (84%), telephone (81%), meeting rooms (84%), photocopier (85%) and computer (84%).[23]

Since 2002, there has been the possibility of having a new union representative at the workplace – a union learning rep. In a workplace with a recognised union, union learning reps are entitled to a reasonable amount of paid time off to carry out their duties (TULRCA Section 168A and Employment Act 2002 Section 43). These duties include addressing employees’ learning or training needs, providing information and advice and promoting the value of learning and preparing and consulting with the employer. They also have the right to time off for drawing up learning plans and working with employers to promote the value of learning.

Training rights

Workplace union representatives also have a right to paid time of for training which is:

• relevant to the carrying union duties (see above), and
• approved by the TUC or by the union to which the representative belongs.

As with time off more generally the amount training permitted is not specified but must be “reasonable in all the circumstances” (TULRCA Section 168 (2)).

The Acas code of practice states that. “union representatives are more likely to carry out their duties effectively if they possess skills and knowledge relevant to their duties” And it goes on to state that, “in particular, employers should be prepared to consider releasing union representatives for initial training in basic representational skills as soon as possible after their election or appointment”. It also suggests that there may be other reasons why employees should be entitled to be given paid time off for training, such as developing their skills, dealing with specific circumstances affecting the workers they represent or where legislation has changed.[24]

Union learning reps, in a workplace with a recognised union, are also entitled to some time off for training as are union safety reps.

Representation at group level

Just as there is no statutory structure for employee representation at workplace level so there is no structure at group level. Meetings of employee representatives at group level are on a voluntary basis at the initiative either of the union or the employer. In some cases, the union may bring its representatives in the company together and sometimes the company itself may wish to do so.

Figures from the WERS 2011 survey show that at that point 20% of workplaces and 27% of employees were covered by a joint consultative committee at a higher level than the individual workplace. Under the WERS definitions, this could include a European Works Council. Higher-level consultative committees were much more frequent in the public sector, where 56% of workplaces were covered, than in the private sector where only 15% of workplaces reported them.[25]

[1] Joint consultative committees under the Information and Consultation of Employees Regulations: A WERS analysis by Duncan Adam, John Purcell and Mark Hall, ACAS 2014 Tables 2.1, 2.2 and page 24

[2] Figures from WERS 2011 survey provided to the Labour Research Department October 2014. The figures do not add up to 100% because of rounding.

[3] Trade Union Membership, UK 1995-2019: Statistical Bulletin, Department for Business, Energy and Industrial Strategy, May 2020 https://www.gov.uk/government/statistics/trade-union-statistics-2019 (Accessed 08.01.2021)

[4] The 2011 Workplace Employment Relations Study: First Findings by Brigid van Wanrooy, Helen Bewley, Alex Bryson, John Forth, Stephanie Freeth, Lucy Stokes and Stephen Wood, BEIS, 2013 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/336651/bis-14-1008-WERS-first-findings-report-fourth-edition-july-2014.pdf (Accessed 08.01.2021)

[5] Progress chart of applications for recognition Annual Report 2019/20 Central Arbitration Committee, 2020 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/916680/CAC_Annual_Report_2019-20.pdf (Accessed 08.01.2021)

[6] Employment relations in the shadow of the recession: Findings from The 2011 Workplace Employment Relations Study by Brigid van Wanrooy, Helen Bewley, Alex Bryson, John Forth, Stephanie Freeth, Lucy Stokes and Stephen Wood, 2013, Table 4.5

[7] Reforming the ICE regulations – what chance now? by Mark Hall, John Purcell and Duncan Adam

Warwick Papers in Industrial Relations, September 2015 https://warwick.ac.uk/fac/soc/wbs/research/irru/wpir/wpir102.pdf (Accessed 08.01.2021)

[8] Eurofound (2015), Third European Company Survey – Overview report: Workplace practices – Patterns, performance and well-being, Figures for Table 44

[9] Information and consultation of employees (ICE): What, why and how, CIPD, March 2020 https://www.cipd.co.uk/Images/ice-guide-full_tcm18-73473.pdf (Accessed 08.01.2021)

[10] The TUC Workplace Manual, TUC, 2016

[11] General Council Report 2020 Section 6.6, TUC Congress 2020 September 2020 https://www.tuc.org.uk/research-analysis/reports/general-council-report-2020?page=6 (Accessed 08.01.2021)

[12] The 2011 Workplace Employment Relations Study: First findings by Brigid van Wanrooy, Helen Bewley, Alex Bryson, John Forth, Stephanie Freeth, Lucy Stokes and Stephen Wood, 2013 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/336651/bis-14-1008-WERS-first-findings-report-fourth-edition-july-2014.pdf (Accessed 08.01.2020)

[13] ibid

[14] Unite the union rule book 2019 https://unitetheunion.org/media/3470/unite-rule-book-effective-following-2019-v2-072020.pdf (Accessed 08.01.2021)Trade union facilities template: National Organising & Leverage Department, Unite, July 2016 https://unitetheunion.org/media/1241/trade-union-facilities-template-word-version.docx (Accessed 08.01.2021)

[15] 2019 UNISON Rulebook https://www.unison.org.uk/content/uploads/2020/01/25913-1.pdf (Accessed 08.01.2021)

[16] GMB Rulebook http://archive.gmb.org.uk/assets/media/RulebookfollowingCongress2018.pdf (Accessed 08.01.2021)

[17] Unite the Union v Nailard [2018] EWCA Civ 1203

[18] Joint consultative committees under the Information and Consultation of Employees Regulations: A WERS analysis by Duncan Adam, John Purcell and Mark Hall, ACAS 2014, page 28

[19] Code of Practice on disciplinary and grievance procedures, Acas, March 2015 https://www.acas.org.uk/acas-code-of-practice-for-disciplinary-and-grievance-procedures/html#the-code-of-practice (Accessed 08.01.2021)

[20] Code of Practice - Time off for trade union duties and activities, Acas, January 2010 https://archive.acas.org.uk/media/274/Code-of-Practice---Time-off-for-trade-union-duties-and-activities/pdf/11287_CoP3_Time_off_Union_Activities_v1_0_Accessible.pdf (Accessed 08.01.2021)

[21] The 2011 Workplace Employment Relations Study: First findings by Brigid van Wanrooy, Helen Bewley, Alex Bryson, John Forth, Stephanie Freeth, Lucy Stokes and Stephen Wood, 2013 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/336651/bis-14-1008-WERS-first-findings-report-fourth-edition-july-2014.pdf (Accessed 08.01.2021)

[22] Trade Union Representation in the Workplace, Acas, 2014 https://archive.acas.org.uk/media/2307/Advisory-booklet---Trade-union-representation-in-the-workplace/pdf/Trade-Union-Representation-in-the-Workplace.pdf (Accessed 08.01.2021)

[23] Worker representation in Great Britain 2004 - 2011: An analysis based on the Workplace Employment Relations Study by Andy Charlwood and Dave Angrave, ACAS 2014, Tables 4.2.1 and 4.2.2

[24] Code of Practice - Time off for trade union duties and activities, Acas, January 2010

[25] Joint consultative committees under the Information and Consultation of Employees Regulations: A WERS analysis by Duncan Adam, John Purcell and Mark Hall, ACAS 2014 Tables 2.1 and 2.2

UK employees have no statutory right to representation at board level. However, following a revision of the UK Corporate Governance Code, which came into effect in 2019, employee directors are a specified option for listed companies, and there are now a handful of employee representatives at board level.

In the UK, there is no legal obligation to have employee representatives at board level, in either private sector or public sector companies. UK companies have single-tier boards, and their directors are chosen by the shareholders.

However, in 2018, Financial Reporting Council (FRC), which draws up the UK’s Corporate Governance Code, produced a new edition of the code coming into effect in 2019. For the first time, this included the possibility of a director being chosen from the workforce.[1] More precisely it stated that, “For engagement with the workforce, one or a combination of the following methods should be used:

• a director appointed from the workforce;
• a formal workforce advisory panel;
• a designated non-executive director.”[2]

Like many parts of the code, this does not place an obligation on companies to comply. They can “comply” or “explain” why they have not done so. However, it does make it more likely that UK companies will choose to have an individual from the workforce as a member of the board.

Despite this, evidence so far suggests that it is unlikely that the new version of the code, which only applies to listed companies will lead to a significant increase in the number of workers on company boards. A 2019 survey by the Local Authority Pension Fund Forum, representing municipal pension funds, found that just one in 20 companies (5%) intended to put a director from the workforce on the board, with the use of a designated non-executive director the most common way of meeting the code’s requirements.[3]

Another study, looking at the current situation found that there were only five companies quoted on the London Stock Exchange which had employee directors,[4] although one of them, the travel company TUI, was incorporated in Germany and followed its legislation.

The Corporate Governance Code says nothing about how many employee directors there should be or how they should be chosen. An examination of the four UK-based companies with employee directors found that, in three of the four cases, there was only a single employee director, with two employee directors (out of a board of 11) at the fourth.

Only one of the four companies had a purely employee-based selection procedure – with the individual indirectly chosen by elected representatives in the group’s subsidiaries. In the three other companies, the employee directors were: selected by the non-executive directors, elected by the workforce out of a shortlist of three chosen by management or elected after interviews with senior management.[5]

Irrespective of how they are chosen, these employee directors have the same responsibilities as other directors.

[1] This followed the statement in 2016 by Theresa May, as part of her successful campaign to be elected as leader of the Conservative Party and thus prime minister, that she wished to see workers on company boards.

[2] The UK Corporate Governance Code, Financial Reporting Council, July 2018

[3] Employees on boards: Modernising governance, LAPFF Report, May 2019

[4] Worker directors increasingly prominent in debates on corporate governance reform, by Chris Rees, June 2019 https://www.ipa-involve.com/news/worker-directors-increasingly-prominent-in-debates-on-corporate-governance-reform (Accessed 08.01.2021)

[5] Board-level employee representation in the UK by Lionel Fulton, November 2019, IMU, https://www.boeckler.de/pdf/p_mbf_report_2019_55e.pdf (Accessed 08.01.2021)

UK representatives on most of the bodies linked to European Works Councils and the European Company are to be elected by the whole workforce, unless there is an existing body which represents and in some cases has already been elected by the whole workforce, which then has appointment rights. But the UK government has chosen not to draw up specific rules on the choice of UK members of some of the European Company structures, leaving the choice to lower level representative bodies.

European Works Councils

UK members of the special negotiating body (SNB) for the EWC are elected by a ballot of the whole workforce, unless there is an existing consultative committee (a body whose normal functions include carrying out an information and consultation function) which itself consists entirely of members elected by the whole workforce. In practice such committees are rare and normally the whole workforce will vote on UK members of the SNB. As well as employees, external trade union representatives can be members of the SNB from the UK, provided the employer “recognises” the union (see section on Workplace representation).

The procedure is essentially the same for UK members of an EWC set up under the fallback provisions of the annex to the directive, although the members can be chosen by existing employee representatives, even if they have not been elected by the whole workforce. Representatives of recognised unions can choose the UK members, provided the union or unions represent the whole workforce. UK members of an EWC set up under the fallback provisions must be employees.

European Company

UK members of the special negotiating body (SNB) for a European Company are elected by a ballot of the whole workforce, unless there is an existing consultative committee (a body whose normal functions include carrying out an information and consultation function) which represents the whole workforce. As well as employees, external trade union representatives can be members of the SNB from the UK. However, this is only possible if company management agrees that this should happen.

There are no specific UK rules on the choice of UK representatives for an SE representative body set up under the fallback procedure in the annex to the directive. This is left entirely to the special negotiating body.

Similarly, in the case of UK employee representatives at board level the UK legislation states only that “the [SE] representative body shall have the right to elect, appoint, recommend or oppose the appointment” of board members. There are no specific UK rules.

In workplaces where they negotiate with the employer, unions have the right to appoint safety representatives to represent the interests of employees in the area of health and safety. In non-union workplaces the employer decides whether employee representatives for health and safety should be elected, or alternatively whether employees should be consulted directly. Non-union health and safety representatives have fewer powers than those appointed by the union, as they cannot undertake workplace inspections. Union safety representatives, but not non-union ones, can also require the employer to set up a safety committee.

Basic approach at workplace level

UK health and safety legislation states that employers have a duty, “so far as is reasonably practicable”, to ensure the health, safety and welfare at work of all their employees. But they also have a duty to consult with any employee representatives present to allow the employer and the employees to cooperate effectively in promoting and developing measures to ensure the health and safety at work of the employees.

Employee health and safety bodies

Recognised trade unions (those with whom the employer negotiates) have the right to appoint workplace safety representatives, often known as safety reps. With the exception of actors and professional musicians, the safety representative must be an employee in the organisation whose employees he or she represents. Officials of the musicians’ and actors’ unions are the only union officials who can represent their members in workplaces where their unions are recognised but where they themselves do not work.

In organisations where there is no recognised union, the employer must consult employees either directly or through elected representatives. It is the employer who decides which route to take. These elected representatives are known as representatives of employee safety (ROES). This situation may also arise in parts of an organisation which are not covered by a recognised union.

In addition, two or more safety representatives can insist that the employer establishes a safety committee, normally a joint employer/employee body. ROES do not have the right to call for the setting up of a safety committee.

Numbers and structure

The legislation does not state how many safety reps should be appointed, leaving this to negotiation between unions and employers. However, guidance notes to the regulations on safety representatives say that it would be appropriate to take into account:

• the number of people employed;
• whether there are different occupations;
• the size of the workplace and variety of workplace locations;
• shift systems; and
• the kind of work and degree and character of the hazards.

There is no indication in the legislation of the number of ROES it would be appropriate to elect.

A safety committee should be set up if an employer receives a written request from at least two safety representatives asking for one. It must be established within three months of the request being received and the employer must consult the representatives making the request and representatives of recognised trade unions in workplaces covered by the committee. The legislation does not specify the composition of the safety committee but the guidance to the regulations recommends that, where safety advisers, a works doctor and other health and safety professionals are present, they should be members. The guidance also suggests that the number of members coming from management should not exceed the number of employee representatives. In any case employees should be informed of the composition of the committee and the areas it covers.

Research by the European Agency for Safety and Health at Work (EU-OSHA) in 2014 found that 70% of workplaces in the UK had health and safety representatives and 27% had a health and safety committee. These are both above the EU-28 averages, which are 58% for health and safety representatives and 21% for health and safety committees. (The figures are for workplaces with five or more employees.)[1]

However, as a separate EU-OSHA report on worker participation in health and safety in the UK noted in 2017, “these levels are substantially higher than other national surveys suggest is in fact the case among United Kingdom workplaces”, making it likely that the results in fact reflect “the best end of the spectrum”.[2]

Tasks and rights

Safety representatives’ functions, as set out in the regulations, are to:

• investigate potential hazards and dangerous occurrences and examine the causes of accidents;
• investigate members’ complaints;
• make representations to the employer;
• carry out inspections at least every three months and after a serious accident, dangerous occurrence or the contraction of certain specified diseases (Additional inspections can be made if work conditions have changed substantially, or if the health and safety authorities have published new information, provided the employer has been consulted.);
• consult with and receive information from health and safety inspectors and other enforcement officers on behalf of members; and
• attend meetings of the safety committee (where one exists).

In order to carry out these functions, the official code of practice accompanying the regulations states that safety representatives should take all reasonably practical steps to keep themselves informed of:

• the legal requirements relating to health and safety at work, particularly those of the group of workers they directly represent;
• the particular hazards in their workplace and measures to eliminate those risks; and
• the employer’s health and safety policy.

The regulations require the employer to provide safety representatives with the information they need to carry out their functions, although there are exceptions, such as for information relating to an individual or information that would damage the employer’s business. The code of practice sets out in greater detail the information that should be disclosed:

• any proposed changes that may affect health and safety;
• technical information about hazards and necessary precautions, including information provided by manufacturers and suppliers;
• information and statistical records on accidents, dangerous occurrences and certain specified industrial diseases;
• any other information specifically related to matters affecting the health and safety at work of employees, such as measures to check the effectiveness of health and safety arrangements; and
• information on articles and substances provided to those working at home.

In addition, safety representatives are also entitled to receive information from health and safety inspectors regarding their visits to the employer’s premises.

The functions of the ROES – the representative elected where there is no union – are more limited. In relation to the group of employees he or she represents they are to:

• make representations to the employer on potential hazards and dangerous occurrences at the workplace which affect, or could affect, employees;
• make representations to the employer on general matters affecting the health and safety at work, in particular where the employer is undertaking a consultation; and
• represent employees in consultations at the workplace with health and safety inspectors.

The ROES does not have a right to undertake inspections – a crucial right for the union-appointed safety representatives – or to require that a safety committee should be set up. There is also no official code of practice for ROES, equivalent to that for safety representatives, setting out the information they should be given by the employer.

The consultation requirements, however, apply to both types of representative. Where safety representatives and/or ROES are present, there is a general requirement for employers to consult with them on health and safety issues. More specifically, they should be consulted in good time about:

• the introduction of any measure at the workplace which may substantially affect health and safety;
• arrangements for appointing competent people to assist with health and safety and implementing procedures for serious and imminent risk;
• any health and safety information the employer is required to provide;
• planning and organisation of health and safety training; and
• the health and safety implications of the introduction (or planning) of any new technology.

There is no specific right for safety representatives or ROES to interrupt work but employee cannot be penalised if they take appropriate steps to protect themselves and others from a serious and imminent danger.

The regulations say nothing about the functions of the safety committee. Guidance from the health and safety authority suggests that its tasks could include analysing accident and disease trends, developing safety rules and advising on safety communication.

Frequency of meetings

There is nothing in the regulations stating how often the safety committee should meet. Guidance from the health and safety authority suggests only that it should meet “as often as necessary”.

Election and term of office

The legislation does not specify how unions should appoint safety representatives in organisations where they are recognised. However the regulations state that, where reasonably practicable, safety representatives should have at least two years’ employment with their present employer or two years’ experience in similar employment. Exceptions to this include cases where the employer or the workplace is newly established, where the work is of a short duration, or where there is a high labour turnover. There is no term of office specified in the regulations, although they make clear that the union that appointed the safety representative can end his or her appointment by writing to the employer to this effect.

There is no legislation specifying how ROES should be elected or how long their term of office should be. It is also the employer who decides whether they should be elected at all. Direct consultation with all employees is always an alternative.

Resources and time off

Union appointed safety representatives have the right to paid time off to carry out their functions, as set out in the regulations (see above), although the legislation does not specify how long this time off might be. They also have a right to sufficient paid time off for training “as may be reasonable in all the circumstances”. The official code of practice says that as soon as possible after their appointment they should be given paid time off to attend basic training approved by the unions and that further training should be undertaken, where necessary. While the code of practice says that that the length of training required “cannot be rigidly prescribed”, it also states that basic training should provide an understanding of the role of safety representatives, of safety committees, and of trade unions’ policies and practices in the area of health and safety. ROES, the representatives for employee safety, who may be chosen where there is no recognised union, also have a right to paid time off to carry out their functions and for “such training … as is reasonable in all the circumstances”. However, for ROES there is no code of practice spelling out what this means in detail. Both safety representatives and ROES have a right to receive from the employer the “facilities and assistance” that they reasonably need in order to carry out their functions.

Protection against dismissal

Both safety representatives and ROES have some protection against dismissal as general employment legislation states that employees should not suffer a detriment or be dismissed or made redundant for carrying out legal functions as “a representative of workers on matters of health and safety at work or member of a safety committee”.

Other elements of workplace health and safety

UK health and safety legislation is not prescriptive on the support that employers need to meet their health and safety obligations. The 1999 management regulations state that, “every employer shall … appoint one or more competent persons to assist him in undertaking the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions”. However, the regulations do not set out the qualifications necessary, stating only that a competent person is someone with “sufficient training and experience or knowledge and other qualities”, although they also say that “a competent person in the employer’s employment” is to be preferred to “a competent person not in his employment”

This approach is reflected in guidance from the key UK health and safety body, the HSE, which states that an employer must “appoint someone competent” to help him or her meet their health and safety duties, but that that person could be the employer or one or more of the workers. The guidance goes on to say that, “if you run a low-risk business, health and safety is something you can manage without needing to buy in expert help” Only “if you are not confident of your ability to manage all health and safety in-house, or if you are a higher-risk business” may there be a need for “some external help or advice”.[3]

There are certainly no set thresholds above which certain types of health and safety experts, either internal or external, are required. As the recent EU-OSHA report on workers’ participation in health and safety in the UK notes, “the use of such practitioners by employers is not subject to detailed regulatory requirements, unlike in many other EU Member States”, and it points out that there is also no legal obligation on employers to provide access to an occupational health service except where workers are exposed to specific risks.[4] This does not mean that there are no health and safety experts. As the report adds, the Institution of Occupational Safety and Health, the professional health and safety body in the UK, has more than 44,000 members and is the largest such body in Europe.

National context

The key body dealing with health and safety in the UK is the Health and Safety Executive (HSE), which one of the agencies of the Department for Work and Pensions. There is a separate The Health and Safety Executive for Northern Ireland (HSENI), which is an agency of the Department for the Economy in Northern Ireland. As well as developing health and safety policy, the HSE is one of the main enforcement bodies for health and safety legislation in the UK and most of the rest of the enforcement is undertaken by local authorities. The HSE deals with potentially more hazardous environments, such as factories, farm, building sites and mines, as well as schools and colleges, hospitals and nursing homes and government offices. Local authorities cover most other premises, such as offices, shops, hotels and restaurants. There are separate bodies for railway and maritime safety, civil aviation and nuclear facilities. Unlike labour inspectorates in many European states, the HSE does not enforce compliance with other aspects of labour law.

Trade unions and employers have an influence health and safety policy through their membership of the board of the HSE. In the past, the main employers’ organisations and the main union confederation, the TUC, have each had three representatives on the board. However, the legislation (the Health and Safety at Work Act 1974) states only that the minister “shall appoint three members after consulting such organisations representing employees as he considers appropriate” and, in recent years, the government has chosen to appoint individuals who have not been not proposed by the TUC. In 2018, only one of the three “employee members” was formally nominated by the TUC.[5]

The UK does not have specific legislation on psychosocial risks, although there is legislation on harassment. Despite union pressure the HSE has not produced a so-called “Approved Code of Practice” on stress, which would place tighter controls on employers in this area. However, it has produced “Management Standards” on stress, which group together the principal causes of work-related stress and make proposals on how they can be tackled.

Key legislation

Health and Safety at Work etc Act 1974

The Safety Representatives and Safety Committees Regulations 1977: SI 1977 No. 500

Health and Safety (Consultation with Employees) Regulations 1996: SI 1996 No. 1513

Employment Rights Act 1996

The Management of Health and Safety at Work Regulations 1999

[1] Second European Survey of Enterprises on New and Emerging Risks, European Agency for Safety and Health at Work, 2016

[2] Worker participation in the management of occupational safety and health — qualitative evidence from ESENER-2: Country report – United Kingdom, by David Walters, Emma Wadsworth and Claire Evans, EU-OSHA 2017

[3] http://www.hse.gov.uk/business/competent-advice.htm and http://www.hse.gov.uk/simple-health-safety/decide.htm

[4] Worker participation in the management of occupational safety and health — qualitative evidence from ESENER-2: Country report – United Kingdom, by David Walters, Emma Wadsworth and Claire Evans, EU-OSHA 2017

[5] For more information on the national context see OSH system at national level – United Kingdom by Aditya Jain and Stavroula Leka , OSH Wiki https://oshwiki.eu/wiki/OSH_system_at_national_level_-_United_Kingdom