Occupational Health Law

Diana Kloss

• Publisher: Wiley-Blackwell
• Year: 2020
• ISBN:
  9781118936238
• Edition: 6
• Topic: Technology & Engineering
• Subtopic: Industrial Health & Safety
• Index: Technology & Engineering

Comprehensive, accessible, and grounded in case law, Occupational Health Law has been an established authority in the field for over thirty years, and continues to provide practical coverage of occupational health, incorporating changes in the legal framework to reflect the very latest developments.

The sixth edition of this indispensable reference work includes substantial new information on European law, the legal and ethical duties of occupational health professionals, medical records and confidentiality, data protection, compensation for work-related injury, the gig economy, the Equality Act and disability discrimination, and much more.

• Covers the provision of occupational health services, the legal liability of occupational health professionals, confidentiality, health surveillance, compensation and equal opportunity legislation
• Includes extensively revised content which aligns with current legislation and case law
• Contains new chapter summaries and highlighted key information boxes throughout

Occupational Health Law, Sixth Edition, is the definitive resource for occupational health and safety professionals, from nurses, physicians and safety officers to HR managers, policy makers, risk managers, and employment lawyers.

1
The Provision of Occupational Health Services

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Occupational medicine is a branch of preventive medicine with some therapeutic functions.

Occupational health (OH) professionals have dual responsibilities: to employers and employees.

OH services in the UK are not provided free of charge through the NHS: the employer must pay. Less than half of the working population has access to OH advice and support.

There is no legal obligation on an employer to provide OH services, other than basic first aid and statutory health surveillance where employees are exposed to particular hazards, for example substances hazardous to health, vibration and noise.

Work‐related ill‐health is a major burden on the economy and the provision of OH services has been proved to be cost effective.

Research has shown that good work is good for health and that being out of work is damaging to health.

General practitioners in the NHS are encouraged to suggest adjustments to work and the workplace in the fit note, which is required for the payment of Statutory Sick Pay, in order to support an early return to work if that is practicable.

A system of accreditation of OH services, SEQOHS (Safe, Effective, Quality Occupational Health Services) has been created and OH services in the NHS are required to apply for accreditation through the Faculty of Occupational Medicine.

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1.1 The development of occupational health services

The origins of occupational health provision lie in the heyday of the Industrial Revolution. Workers in the mills and factories, in common with all except the well‐to‐do, had no access to medical services because they could not afford them. Some benevolent employers, moved by the suffering of the masses, provided housing and medical services out of their profits; most did not. The nature of this provision was not in any sense connected with work‐related disease or injury; it was general medicine for workers and their families such as is today provided by the general practitioner in the National Health Service. Workers still perceive the provision of medical and nursing services at work as a mark of a good and caring employer; it goes together in their minds with decent canteen facilities and a good working environment. On the other hand, now that the NHS gives everyone access to free medical treatment, it may be considered wasteful for there to be duplication of treatment facilities, other than to provide first aid in an emergency. This argument might be more easily sustained if the NHS were not under constant financial pressure. Also, if the provision of physiotherapy at the workplace saves the worker having to take a day off a week to attend the hospital, it may be of financial benefit to the employer and reduce the burden on public funds. Increasingly, employers in the private sector see the health of their key workers as a business asset to be maintained with medical and nursing assistance in the same way as engineers maintain machinery. In practice though, regular health surveillance of such workers is often contracted out to private health organisations. In 2008 Dame Carol Black in her review of the health of Britain’s working age population suggested that the time had come for the NHS, through the Primary Care Trusts, to assume responsibility for getting people back to work after illness or injury. ‘Occupational health, along with vocational rehabilitation, needs to be fully integrated into the NHS.’ However, in 2009 Dr Steve Boorman published a report on the health of the NHS workforce demonstrating that occupational health provision in the NHS was patchy and NHS employers were taking insufficient care of their employees’ health, impacting directly on patient care. Since then measures have been put in place to try to improve the situation, but increasing pressure on the NHS has created concomitant pressure on its employees.

Other developments which contributed to the growth of occupational health (OH) services were various Acts of Parliament passed to give the employee a right to compensation against his employer (beginning with the Workmen’s Compensation Act 1897), long since transferred to the Welfare State under the industrial injuries legislation, and to protect the consumer against risks caused by the ill health of workers in, for example, the food processing and transport industries. The principal motives behind the introduction of medical monitoring by occupational health professionals in response to these measures were to protect the employer against legal action and the public against injury, rather than to care for the welfare of the workers, though the genuine concern for their employees of pioneer companies like Chloride and Pilkington’s must also be acknowledged. Other factors were the increase in statutory regulations to protect the munitions workers during World War I and the need after both World Wars to help the disabled find and maintain suitable employment.

After World War II there were several official reports on provision for occupational health including the Dale Report in 1951 and the Porritt Report in 1962. The Robens Committee on Health and Safety at Work, reporting in 1972, stated that in their understanding, occupational health included two main elements – occupational medicine, which is a specialised branch of preventive medicine, and occupational hygiene, which is the province of the chemist and the engineer engaged in the measurement and physical control of environmental hazards. ‘Clearly these two elements must be closely integrated, since the basis for environmental control must be derived from the medical assessment of risk.’ The Committee placed the greatest stress on their fear that the employment of large numbers of doctors and nurses in the workplace would be a wasteful duplication of the general practitioner service. They were largely in agreement with the view of the government that: ‘In the field of occupational health the working environment is of predominant importance, and it is engineers, chemists and others rather than doctors who have the expertise to change it.’

The Health and Safety Commission (HSC) in 1978 produced a wide‐ranging discussion document: Occupational Health Services – The Way Ahead. This highlighted the problem of providing services for workers in small organisations. It explored various ways of promoting co‐operation between employers, like the establishment of group industrial health services (Slough was a well‐known example) to which small companies could subscribe according to the number of their employees, or the ‘leasing’ of spare capacity in a large organisation to other employers in the locality.

The Health and Safety Executive (HSE) in 1982 published a booklet entitled Guidelines for Occupational Health Services, which gave practical guidance on the functions, staffing and operation of OH services. This stressed that each organisation has its own needs. The number of employees, the number of locations, the number and severity of potential hazards, any statutory requirements for health surveillance, and the availability of and distance from NHS facilities must all be taken into account.

In 1983 the Select Committee on Science and Technology of the House of Lords, chaired by Lord Gregson, reviewed the future provision of occupational health and hygiene services. It defined occupational health as the physical and mental well‐being of the workers and occupational hygiene as the control of physical, chemical and biological factors in the workplace which may affect the health of the worker. The Gregson Committee perceived the main aim of an occupational health service as the promotion of the health and safety of those employed at the workplace. Occupational medicine was described as ‘a branch of preventive medicine with some therapeutic functions’. No full survey of occupational health services had ever been undertaken, but what research had been done revealed that at that time (1976), full‐time medical and nursing personnel were concentrated in large industries, as might be expected. Many large companies relied on part‐time medical advisers who might be local general practitioners (GPs). Few of these had special training in occupational medicine: 87.6 per cent of firms, employing 36 per cent of the workforce, had no medical service apart from first‐aiders (Occupational Health Services – The Way Ahead (1978)).

The Committee concluded that more provision was needed in small firms. They put considerable emphasis on preventive medicine:

Early detection of hazards of work and the timely adoption of preventive measures will not only alleviate individual suffering: they will lighten the financial burden which sickness imposes upon the State. There are also sound business reasons for ensuring that a workforce remains healthy. A healthy worker is a more efficient worker: absenteeism is lower and productivity higher.

The costs of the service should continue to be borne by the employers in reflection of their general duty under the Health and Safety at Work Act. However, Gregson was not in favour of imposing a legal obligation to provide an occupational health service. The Committee thought that a non‐statutory Code of Practice should be drawn up and monitored by the Employment Medical Advisory Service (EMAS). Tax incentives could be conferred on those who implemented the Code, and insurance companies might take it into account in fixing premiums. General practitioners should be encouraged to extend the occupational health side of their activities and to acquire additional qualifications. Occupational health nurses should be the first point of contact between the patient and other sources of referral. Trade unions and employees should be given more opportunity to have a voice in the management of occupational health services.

So far, there has been no significant move towards either a voluntary or a statutory Code of Practice. Meanwhile there have been international developments.

International developments

As long ago as 1962, the European Commission recommended that a statutory obligation to provide an occupational health service should be introduced at least for large employers (as has been shown, this would not represent much of a change in this country where most large concerns already have such a service). In June 1985, the International Labour Organization (ILO) adopted a Convention (No. 161) and a supporting Recommendation (No. 171) on Occupational Health Services. The Convention defines occupational health services as:

services entrusted with essentially preventive functions and responsible for advising the employer, the workers and their representatives in the undertaking on:

1. the requirements for establishing and maintaining a safe and healthy working environment which will facilitate optimal physical and mental health in relation to work; and
2. the adaptation of work to the capabilities of workers in the light of their state of physical and mental health.

It should be noted that the Convention covers occupational hygiene and ergonomic services as well as medical and nursing services. Signatories to it will have to formulate, implement and periodically review a coherent national policy on occupational health services and to develop progressively occupational health services for all workers such as are adequate and appropriate to the specific risks of the undertakings. The UK government sought the advice of the HSC on whether the UK should ratify and/or accept Recommendation 171, which is in similar terms to the Convention, but would not, if implemented, carry the same mandatory legal force as the Convention, were the Convention to be adopted here. The HSC advised that no decision should be taken at that stage.

If this country were to ratify the Convention, legislation would eventually be needed. An additional duty would have to be imposed on employers by amendments to the Health and Safety at Work Act whereby they would be compelled to provide an adequate and appropriate occupational health service, as defined in the legislation, or be guilty of a criminal offence. Further legal provisions would be needed to implement specific requirements. The legislation would not have to come into immediate effect, but would commit us to a process of progressive development.

The Recommendation could be accepted only in part; there would be a moral though not a legal obligation to implement any provisions which had been accepted. However, acceptance of the Recommendation would not require any major changes in our law.

As the Convention is under discussion, it may be worthwhile to examine its structure, especially as it demonstrates the trend of the international community’s thinking on occupational health services. Important aspects are as follows:

• It employs legal sanctions, rather than the voluntary approach which has so far prevailed in the UK.
• It adopts a multidisciplinary approach, regarding the doctor and the nurse as part of a team which also includes the hygienist and the ergonomist.
• It contemplates that there shall be recognised qualifications for person...