Can tell, won't tell (employers, the DPA and RIDDOR)

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  Can tell, won't tell (employers, the DPA and RIDDOR)

Trade union safety representatives know that employers can be tardy and obstructive when asked to disclose information which the TU side needs to properly negotiate for their members or to act to protect their members.

Long before the Data Protection Act (DPA) arrived on the legal scene, many safety representatives had difficulty in getting employers to release information which was properly the subject of the Reporting of Incidents, Diseases and Dangerous Occurrence Regulations 1995 (RIDDOR).

Since the Data Protection Act 1996 (DPA) employers have become increasingly obstructive in releasing this information, quoting the DPA and, ironically, their not wanting to break the law, as a reason for withholding information from Safety Reps about serious accidents their workers have suffered.

What the London Hazards Centre seeks to do here is sort sense from nonsense about the information that can be properly divulged to safety reps and which, legally, employers have a duty to divulge.

Regulation 7 of RIDDOR makes it a legal requirement for an employer to keep a record of matters that they report under RIDOOR to the HSE.

Regulation 7(1) of the Safety Representative and Safety Committee says: "Safety representatives shall, for the performance of their functions under section 2(4) of the 1974 Act and under these Regulations, if they have given the employer reasonable notice, be entitled to inspect and take copies of any document relevant to the workplace or to the employees the safety representatives represent which the employer is required to keep by virtue of any relevant statutory provision within the meaning of section 53(1) of the 1974 (Health and Safety at Work) Act except a document consisting of or relating to any health record of an identifiable individual."

RIDDOR is a "relevant statutory provision within the meaning of Section 53(1) of the 1974 Act".

Section 35 of the DPA is perfectly clear (see the text in separate box), it says that anything that a Safety Rep had a legal right of access to before the DPA - they still have a right of access to now.

The only exception to this right of access to SRSC reg 7(1) information is information "consisting of or relating to any health record of an identifiable individual." Obviously a RIDDOR report is not a "health record" it is report of an incident, disease or dangerous occurrence which is work related. The only portion of it which could be construed as a "health record" is the name of the work related disease they have or the nature of the work related injury they suffered. And so the only part of a RIDDOR form that could arguably be withheld from a Safety Representative is Part D, which relates to the injuries sustained. However, as this information is clearly needed by safety reps to fulfil their statutory functions we believe this argument outweighs all others and the information must legally be provided to reps.

The issue has been fudged by HMSO who have brought in a disclosure consent form, to be signed by the injured person. If the form is not signed (for whatever reason - the person is dead, hospitalised or just doesn't want people to know) the employer will have days if not weeks to clean up the accident site before the Safety Rep can properly carry out an investigation into the matter under Regulation 6 of the SRSC.

This current fudge by Government and the HSE allows employers to use the DPA to subvert the force of Section 35 of the DPA (which allows disclosure, otherwise illegal, for purposes of establishing, exercising or defending legal rights). To deny safety reps access to information they have a legal right to and to interfere detrimentally with Safety Reps exercising their investigative function established by Reg 6 of SRSC can't be the intention of the lawmakers otherwise there would never have been a Section 35 of DPA.

This position adopted by the authorities, in providing employers (yet again) with a "get out of jail free" card, is untenable especially when SRSC Code of Practice 6 (c) says:

" The Regulations require employers to make information within their knowledge available to safety representatives necessary to enable them to fulfil their functions. Such information should include: information which the employer keeps relating to the occurrence of any accident, dangerous occurrence or notifiable industrial disease and any statistical records relating to such accidents, dangerous occurrences or cases of notifiable industrial disease."

Unions who have Safety Reps facing this problem should consider, if the matter can't be resolved under their workplace disputes or grievance procedure, taking the employer to Employment Tribunal for causing the Safety Rep "a detriment" contrary to Section 44 of the Employment Rights Act, 1996.

This is a method of trying to resolve problems of obstructive employers that, to our knowledge, has not been tried too much, if at all, for safety representative's health and safety matters. It would probably take a few test Employment Tribunal cases to see if it is truly a useful way of getting safety representatives health and safety problems resolved - but is worth considering.

Data Protection Act, 1996
35. - (1) Personal data are exempt from the non-disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court.
- (2) Personal data are exempt from the non-disclosure provisions where the disclosure is necessary-
(a) for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or
(b) for the purpose of obtaining legal advice,
or is otherwise necessary for the purposes of establishing, exercising or defending legal rights.

Section 44 Employment Rights Act, 1996.
- (1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that-
(a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities,
(b) being a representative of workers on matters of health and safety at work or member of a safety committee-
(i) in accordance with arrangements established under or by virtue of any enactment, or
(ii) by reason of being acknowledged as such by the employer, the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee.

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