Occupational Health Law. Diana Kloss
having seen the films taken in her home, was of the opinion that the claimant had an entirely satisfactory function in her right hand. It was not in dispute that the enquiry agent was guilty of trespass. The issue was whether the illegally obtained films should be admitted in evidence. The claimant argued that they should not be, because they were obtained in breach of Article 8 by invading her home; the defendant argued that they should be, because they were a true record, not manufactured, and without them the defendant would be denied a fair trial under Article 6. The court agreed to admit the evidence as probative, but ordered the defendant to pay the costs of the litigation to establish the admissibility of the evidence (Jones v. University of Warwick (2003)).
In McGowan v. Scottish Water (2005) the employer suspected that McGowan, who lived in a tied cottage close to his workplace, was falsifying his timesheets with regard to call‐out time. They hired private investigators to undertake covert video surveillance of his home from the public road; their suspicions were confirmed and he was dismissed. It was held that this was a justifiable interference with privacy because the employer had a reasonable suspicion that the employee was defrauding public funds and was entitled to investigate.
C v. The Police and the Home Secretary (2007) concerned a sergeant of police who retired on medical grounds in 2001. He claimed that in 1998 he had suffered a back injury as a result of tripping on a carpet in a police station while on duty. His claim was settled out of court for £100,000. He then claimed an injury on duty award to increase his pension. The police force was suspicious and hired a firm of private enquiry agents to film him mowing his front lawn, and also driving his car. No authorisation for these activities was obtained from a senior police officer under the Regulation of Investigatory Powers Act 2000 (RIPA). The Investigatory Powers Tribunal held that such an act of employment‐related directed surveillance did not need to comply with RIPA procedures. The police were not investigating a crime; rather, they were collecting evidence for the purpose of a pension appeal. However, they decided that the Tribunal had no power to adjudicate on whether there was a breach of Article 8 of the European Convention on Human Rights, which was a matter for the ordinary courts.
International Labour Organization
The International Labour Organization (ILO) was founded in 1919 by those nations who had been the victors in World War I, to bring together representatives of employers’ and workers’ organisations and also of governments of participating states. It holds international conferences annually in Geneva and acts as a focus for those who strive to raise standards of protection for workers, not merely in the field of health and safety, but in industrial relations in general. Most countries belong to the ILO, which is the oldest and most experienced international body concerned with the establishment of international labour standards.
The ILO adopts Conventions and Recommendations. Ratification of a Convention amounts to an undertaking that its provisions will be given legally binding force by a legislative enactment. Even then, a government may denounce a Convention at a later date, as the British government has done with laws preventing women workers from being employed at unsocial hours (Chapter 8). A Recommendation does not have to be ratified, but adoption by a government signifies that the government will in the future be guided by the Recommendation if and when it decides to act. The ILO has produced a Convention and Recommendation relating to the provision of occupational health services (Chapter 1). In 2003 the ILO adopted a Global Strategy on Occupational Safety and Health.
Workers’ rights and data protection after Brexit
The European Union (Withdrawal Agreement) Bill 2019–20 (WAB) has at time of writing (January 2020) passed successfully through the House of Commons. As, after the December 2019 General Election, the government has an overall majority in the House, it is almost certain to become law, though the House of Lords may attempt to make amendments. This Bill is a revision of that previously published in October 2019 before the election and no longer contains clauses on the protection of EU‐derived workers’ rights. In the December 2019 Queen’s Speech it was announced that protection for EU workers’ rights would be included in an Employment Bill which at time of writing has not been published. The problem is that, during the transition period after the UK leaves the EU on 31 January 2020 and the end of the transition period, currently fixed at 31 December 2020, a comprehensive agreement about trading arrangements and consequential measures will need to be negotiated with the EU. The EU may be unwilling to agree to provisions that allow the UK to deny workers’ rights that are protected by EU law, for example the right to paid holidays, protection under TUPE, the right to consultation when mass redundancies are proposed, and protection under health and safety and equality laws. Although UK law may already have provided some protection in these areas, EU directives and decisions of the Court of Justice of the European Union in many cases expanded it. If protection of workers is inferior in the UK to that in EU Member States the UK has an economic advantage which the EU may be unwilling to accept in a new trading agreement. The non‐binding Political Declaration negotiated between Johnson and the EU stated that the UK/EU agreement should have a level playing field clause, that is a clause that the UK would maintain employment standards at the current high levels provided by the existing common standards. However, in October 2019 the Financial Times reported that the government was looking to de‐regulate workers’ rights post‐Brexit, though this was denied by the Business Secretary in the House of Commons.
The Queen’s Speech announced the appointment of a new enforcement body for workers’ rights, and proposed extended redundancy payments protection and a new right for workers to request a ‘more predictable contract’. A National Skills Fund will be created to retrain the UK workforce.
As regards EU workers currently working in the UK, many in low paid jobs in healthcare, agriculture and catering and hospitality, the new immigration rules which will create an Australian style points‐based system will exclude most of these, giving rise to manpower problems. It has been proposed that such workers should be allowed entry on limited‐term visas to undertake particular tasks.
At the moment, because of the General Data Protection Regulation, the UK automatically follows EU data protection rules that allow the unfettered transfer of personal data across the bloc. This will fall away after Brexit. Without a fresh agreement companies will be banned from sending personal data electronically to Britain at the end of the transition period. This would be deeply destructive to business, especially services, including finance and telecommunications, many of whom rely on central data centres and large‐volume information flows. It would also damage the UK’s growing digital industry as well as jeopardising security and crime intelligence co‐operation.
In the event that no agreement is reached by December 2020 and no extension to the transition period is agreed the UK will leave without a deal and will operate under World Trade Organisation rules.
1
The Provision of Occupational Health Services
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