Occupational Health Law. Diana Kloss
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.
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.