Reason for this guidance:
In relation to employers’ use of contingency staff to run a skeleton service during the current industrial action, RMT has written and met with the ORR (as the rail safety regulator) to explain our concerns relating to the safety implications of using this strike-breaking workforce.
The response received from ORR has not given us any assurance that it is prepared to do anything to regulate the railway during strike days; instead, it seems to be doing the Government’s work for them and turning a blind eye to the safety incidents caused by the use of contingency staff on strike days.
But by acting in such a way ORR is in breach of both its guidance for ORR inspectors on principles for contingent staff and standards referred to in its correspondence to us, particularly a letter from Ian Prosser, Director of Railway Safety dated 17th June 2022 (sections of which are included at the end of this guide).
This RMT advice document explains what RMT safety reps can do to hold their employers to the standards as set out in the ORR guidance for their inspectors:
The guide is divided in to two main sections, legal and good practice requirements.
- LEGAL requirements on employers. The main aspects of which are:
- The following documents must be in place:
- A suitable and sufficient risk assessment of the use of contingency staff, to include what level of service can be safety delivered
- A task analysis showing what tasks contingency staff are required to carry out
- A training needs analysis
- Contingency staff must meet the same standard to the post being covered in covered in relation to medical fitness, psychometric assessment, alcohol and drugs screening and train driving license.
- Any incidents involving contingency staff should be dealt with as would be done with non-contingency staff.
In relation to point (I) as above and the documents that must be in place when an employer plans to use contingent staff, RMT safety reps have told us that their employer has refused their request to see these documents.
If this happens to you, please refer to:
Safety Representatives and Safety Committee Regulations 1977 https://www.tuc.org.uk/sites/default/files/BrownBook2015.pdf,
as it is clear from these regulations that safety reps are entitled to see these documents. The following sections of the Regulations apply – and should be referred to if employers refuse such requests (the bold is ours):
SRSC Regs, Regulation 4, “Functions of safety representatives”
(1) In addition to his function under section 2(4) of the 1974 Act to represent the employees in consultations with the employerunder section 2(6) of the 1974 Act (which requires every employer to consult safety representatives with a view to the making and maintenance of arrangements which will enable him and his employees to cooperate effectively in promoting and developing measures to ensure the health and safety at work of the employees and in checking the effectiveness of such measures), each safety representative shall have the following functions –
(a) to investigate potential hazards and dangerous occurrences at the workplace (whether or not they are drawn to his attention by the employees he represents) and to examine the causes of accidents at the workplace;
(b) to investigate complaints by any employee he represents relating to that employee’s health, safety or welfare at work;
(c) to make representations to the employer on matters arising out of sub-paragraphs (a) and (b) above;
(d) to make representations to the employer on general matters affecting the health, safety or welfare at work of the employees at the workplace;
(e) to carry out inspections in accordance with Regulations 5, 6 and 7 below;
In relation to (e) as above, regulation 7 sets our more detail:
SRSC Regs, Regulation 7
“Inspection of documents and provision of information”
(1) 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 Act except a document consisting of or relating to any health record of an identifiable individual.
Also relevant is Regulation 7, Guidance notes 67 and 68. “Your duty to provide information” states:
GN 67: You have a duty under section 2(2)(c) of the 1974 Act to provide such information, instruction and training, and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of all your employees (see Appendix 1 and Appendix 2 for more information). Appointed health and safety representatives will need to be given appropriate and sufficient information and knowledge to enable them to play an informed part in promoting health and safety at work.
GN 68 states: Employers have duties under the Management Regulations to, among other things, provide information on:
(a) risks to their employees’ health and safety identified by their risk assessment;
(b) preventive and protective measures designed to ensure employees’ health and safety;
(c) procedures to be followed in the event of an emergency in the workplace;
Of those RMT safety reps whose request to see this documentation has been refused, reasons given by their employers have included:
- An RMT safety rep’s role is to review safety relating to the members they represent - and as RMT does not represent contingency workers, the reps are not entitled to see these documents
- the info is not required to fulfil the functions of safety reps
- Employers liaise with ORR in regard to their industrial action arrangements and provide any information as requested by the regulator.
In relation to RMT not representing contingency workers, SRSC regs, Regulation 3, guidance note 23, “Who do health and safety representatives represent” applies; this states:
‘Normally, recognised trade unions will appoint representatives to represent a group of groups of workers of a class for which the union has negotiating rights. However, limiting representation to a particular group or groups should not be regarded as a hindrance to the representative raising general matter affecting the health and safety of employees as a whole’.
Additionally, in terms of arrangements on a strike day, there is not a clear cut-off of work; for example, it is not as if RMT members work in a factory, where one shift (this being the contingency labour workforce) books off and then the normal workforce book on. With RMT industrial action there is an overlap, whereby contingency staff may work alongside the non-contingency staff carrying out duties and this can have a potential safety impact on health and safety.
Furthermore, the potential impact of unsafe work by contingency staff is not necessarily connected with a particular incident, it may be on going and impact non-contingent staff once the strike is over and non-contingent staff are back at work. For example, if a train is not prepped properly, the safety implications of this may only become a risk factor hours after the train was prepped.
Additionally, the legislation also covers the workplaces in which our members work, so unless the contingency staff and their tasks are being conducted off site they would also be covered under the legislation.
Given this, safety reps have a legal right under the SRSC regs to see the documentation relating to the health and safety of their members and should quote SRSC regs if the employer refuses this request. If the employer continues to refuse these documents, quote the specific regulations as detailed above.
If your employer continues to refuse your request, escalate this through the health and safety machinery - whether this be to a more senior RMT rep or to the safety committee - and contact your Regional Organiser. Let us know at email@example.com how you get on with obtaining this information.
If your employer does share the risk assessments with you, ensure these meet the legal standard of suitable and sufficient.
What is meant by “suitable and sufficient”
This is the legal standard. Unfortunately, what is meant by “suitable and sufficient” is not defined in Management of Health and Safety at Work Regulations, but the HSE explains this to mean that a proper check is made to identify the risks arising from or in connection with work. Issues that should be considered for a risk assessment to meet the legal bar of “suitable and sufficient” are: that it demonstrates that reasonable steps have been taken to identify hazards; that consideration has been given to all those who might be affected whether they are workers or others, such as members of the public; that the risk assessment is appropriate to the nature of the work and proportionate to the risk, that it ensures that significant risks of hazards are addressed; and that all aspect of the work activity are reviewed, including routine and non-routine activities. Once employers have identified the risks, they should put in place mitigations to ensure that, where possible, the risks of transference are eliminated or reduced.
Risk assessment reviews
The Management of Health and Safety, regulation 3.3 (a) states that the employer has a legal duty to review the risk assessment if there is reason to believe it is no longer valid or there is a significant change in the matters that are being assessed.
Many of the incidents that have been reported to RMT on our action email address are of such seriousness to suggest that the contingency staff risk assessment is not valid. In such circumstances safety reps should request that the risk assessment is reviewed and that they are involved in this review process.
It is important that the risk assessment is a working document and that it reflects what is happening in the real world. Employers should monitor incident rates and control measures and ensure that they have learnt lessons from any such incidents and judge whether their control measures are effective.
- Most significant points ORR inspectors are told to look for in relation to good practice measures:
- Information on how the competency of contingency staff is categorised
- Ensuring contingency staff receive the same period of training in the identified tasks as the staff who would normally carry out those tasks. This can be measured in either days or hours.
- Carrying out independent safety validation of any revised training programme.
- Restricting the working hours/travelling time of contingency staff, and rostering arrangements should consider fatigue
In respect to training, you have rights as a safety rep to be involved in plans employers make regarding training. The SRSC reg 4A, Employer’s duty to consult and provide facilities and assistance, Guidance note, 4 ‘what you must consult health and safety representatives about’
(d) the planning and organising of any health and safety training they must provide to employees under health and safety law. For example, the Management Regulations have a requirement to instruct and train employees when they are first recruited, and when they are to be exposed to new or increased risks.
Ask questions such as who carries out this ‘independent’ validation, and how long the training lasts.
Ensure you report all steps your employer takes to undermine the RMT industrial action, which have already led to or have the potential to lead to a dangerous incident to: firstname.lastname@example.org.
We can use this information to contact ORR in order to alert the organisation and ask for its intervention, and to advise members, if and when necessary, as to what actions to take if they feel they are at risk. If ORR refuses to intervene, we will use this as part of our press work.
If you do report anything to the email@example.com, please provide as much relevant information as possible, including details on what has happened, where it happened, who it involved, when and why. This email address is monitored throughout the period of strike action and subsequently.
Extracts from letter from Ian Prosser, Director of Railway Safety to RMT, dated 17th June 2022 (please feel free to quote from this if it is of use):
Use of contractors:
Our guidance to industry is clear: if and where contractors are used, they should be trained, developed, and assessed to the same standards as substantive staff. Regulations also set out that everyone operating safety critical work must have been assessed as competent and fit to carry out the work.
Regarding Network Rail:
We have carried out proactive inspections of NR contingent signaller training and competence. Our conclusion at this stage is that contingency plans and arrangements contain appropriate arrangements for ensuring adequate training and practical experience appropriate to the reduced level of service being planned. Our inspections found that the training was as per the relevant operations manual procedure for contingency signallers: operationally competent in the relevant rules, and additional training, development, familiarisation and assessment are all recorded. This includes time in boxes as well as use of simulators. Contingency staff are graded according to the extent of their demonstrated competence, and this determines the complexity of the location they can work and the percentage of normal traffic they can oversee.
We have no evidence to suggest inadequate risk assessments.
ORR expectation on TOCs and NWR to comply with H&S legislation:
Our expectation is that the Train Operating Companies’ and Network Rail’s arrangements will comply with health and safety legislation. ORR Inspectors will be monitoring the industrial action for this assurance.