Objective: to have the knowledge, skills and attitudes to cope with ethical and legal issues in the management of patients with occupational problems
UNDERSTAND HOW OCCUPATIONAL HEALTH IS ORGANISED IN THE UK AND OUTLINE THE REQUIREMENTS OF HEALTH AND SAFETY REGULATIONS, CIVIL COMPENSATION AND DISABILITY DISCRIMINATION LAW.
Occupational Health in the UK
Since joining the European Union (EU) the UK is required to interpret EU Heath and Safety Directives and to incorporate them into law as statutes or regulations.
Health and safety legislation has improved awareness of hazards and risks in the workplace, and has led to an improvement in the dissemination of occupational health and safety to industry.
Parliament provides several legislative acts to protect workplace health and safety. The most significant of which is the Health and Safety at work Act (HSWA) of 1974. This legislation is the UK’s equivalent of the European Framework Directive on occupational safety and health.
The Health and Safety Commission (HSC) is responsible for health and safety regulation in the UK. They are sponsored by the Department of Work and Pensions (DWP) and are ultimately accountable to the Parliamentary under Secretary for Work and Pensions.
The HSC mission is laid out below:
The HSC is supported by two enforcing authorities:
1. The Health and Safety Executive HSE:
The HSE inspector has responsibility to monitor health and safety in factories and high hazard employment such as railways, nuclear, off-shore, mines, quarries, hospitals and schools.
2. Local authorities:
The environmental health officer has responsibility to monitor health and safety in less hazardous employments such as offices and shops.
Health and Safety legislation is made up of ‘regulations’ ‘guidance’ and ‘codes of practice’. The majority of regulations and approved codes of practice still emphasize safety issues rather than occupational health issues. The legal responsibility of senior management is clearly spelled out in the legislation.
Regulations identify specific risks and lay out required action to be taken in response to them. Where appropriate the HSC will provide regulations in goal setting form and set out what must be achieved but not how. In some cases however the requirements are absolute. Here employers are required to fulfil the regulation explicitly.
Guidance and approved codes of practice provide advice on how to comply with the law and have special legal status. If an employer is found to have breached the health and safety law and has not followed the relevant provisions of an approved code of practice, the court will find them at fault, unless they can show they have complied with the law in some other way.
The enforcing authorities have the power to ensure that relevant laws are complied with and any breach of these laws can lead to actions that are outlined below:
A number of regulations have been issued under the HSWA, the most important of which are the Control of Substances Hazardous to Health Regulations (COSHH) 2002 and the Management of Health and Safety at Work Regulations (Management Regs) 1999.
The COSHH regulations require employers to control exposure to hazardous substances. The use of chemicals and any hazardous material could put people’s health at risk. The COSHH regulations aim is to protect employees and others who might be exposed to such hazards. To this end it sets out eight basic measures that employers (and sometimes employees) must comply with.
The eight measures are listed below:
Management Regs 1999
Management Regs 1999 are probably the most influential of the regulations. They provide that an employer does the following:
Other important pieces of legislation are outlined below:
Occupational health services
In the UK there is no legal obligation for an employer to provide an occupational doctor or nurse at the workplace, but there is an obligation is to provide first aid. Hence, employers are required to provide adequate first aid cover in the workplace. This cover takes the form of employees being trained by recognised bodies to carry out basic first aid in the workplace.
The provision of occupational health services across the UK is sporadic, and is influenced by the size of the company and the nature of the industry. In the public sector such as the NHS or civil service 72% of employees have access to an occupational health doctor at the workplace, whereas only 20% of workers in the private sector have such a service.
In some industries however, there is a statutory obligation to provide regular health screening. These are environments in which employees might be at significantly high risk to specific health hazards associated with their work e.g. ionising radiation, lead, or asbestos. In such industries there is a duty on the employer to provide regular screening by an ‘appointed doctor’ or a doctor employed by EMAS. An appointed doctor is a doctor who is recognised as having received training to a required standard in the health risks associated with a specified hazard.
Broadly speaking the provision of occupational health in the UK can be divided into:
Law is made by parliament and judges. Law made by parliament (House of Commons, House of Lords and the Queen) is known as legislation or ‘statute law’. Most of criminal law i.e. law concerned with the punishment of those who offend against society as a whole is in the form of Acts of Parliament. The most important statute in relation to occupational medicine is the Health and Safety at Work Act (HSAW).
Civil law is concerned with disputes between individuals or organsations and usually leads to financial compensation rather than custodial sentences. It is not in the form of statute, but is created mainly via precedent and made by judges in the course of hearing individual cases. The other main distinction in civil law lies in ‘burden of proof’. A criminal case must be proved ‘beyond reasonable doubt’, where as a civil case must be proved ‘on the balance of probabilities’.
Civil law is relevant for occupational health professionals and is seen in the following:
Disability Discrimination Law
The Disability Discrimination Act 1995, as amended by the Special Educational Needs and Disability Act 2001 applies to all employers and everyone who provides a service to the public, except the Armed Forces.
Under the Disability Discrimination Act (DDA), all employers must make reasonable adjustments so they do not discriminate against disabled customers or employees. This affects the way employers treat staff, job applicants and customers. The law has been designed so that employers have to make what are called reasonable adjustments. If they fail to do what is reasonable, a disabled person could take legal action against their employer for treating them unfairly.
Disability is defined under the act as a ‘physical or mental impairment which has a substantial and long term adverse effect on a person’s ability to carry out normal day to day activities.’
To define this statement further;
If an individual who is wheelchair bound applies for a secretarial post in a three storey building with no lifts, is turned down due to concerns over access, the employer could be prosecuted for failing to consider reasonable adjustments. The employer should consider reasonable adjustments such as rearranging the system of work so that the individual is located on the ground floor as well as reviewing disabled access to the building.
It is important to be clear of the role of occupational health physician (OHP). An occupational health physician provides advice to employers as to the likelihood of individuals being protected by the DDA. The final decision as to whether the individual is protected or not however is a legal one decided in a court of Law.
It is not always apparent to employers if individuals have medical conditions that are protected by the DDA. Quite often employers claim that they have insufficient information about employees and the details of any disability. However if the occupational health team are aware of an employees disability then in accordance with the DDA 1995, it will not be a defense for an employer to claim that they did not know of the employee’s disability. This is because the information gained by the medical officer on the employer’s behalf is imputed to the employer. Even if the employee does not want their line manager to know that they have a disability, the occupational health officer’s knowledge means that the employer’s duty under the act applies. Therefore it might be necessary for the line manager to make reasonable adjustments without knowing precisely why they have to do so. More detailed information can be found in the Disability Rights Commission’s Code of Practice: Employment and Occupation.