Occupational Health Law. Diana Kloss
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 personnel providing occupational health services.
It requires the involvement of the workers themselves in the management of the service.
It sees the function of the service as essentially preventive; treatment is confined to first aid and emergency treatment.
As has been seen, the movement in occupational health has been away from treatment but towards prevention. If an employer wishes to provide ‘private treatment’ services in addition to the NHS because he thinks them economically worthwhile he may do so, but this is less important than the identification of work‐related hazards and the steps taken to protect the workers against them. A Joint ILO/World Health Organization Committee in 1950 wrote this:
Occupational health should aim at the promotion and maintenance of the highest degree of physical, mental and social well‐being of workers in all occupations; the prevention among workers of departures from health caused by their working conditions; the protection of workers in their employment from risks resulting from factors adverse to health; the placing and maintenance of the worker in an occupational environment adapted to his physiological and psychological equipment.
The UK government’s response to the Gregson report was published in 1984 (House of Lords Select Committee on Science and Technology). It enthusiastically welcomed the conclusion that ‘the responsibility for occupational health and hygiene services should lie largely with individual employers’. It doubted whether GPs could provide services as an integral part of primary care without reducing efficiency. The government made clear its determination not to provide occupational health services out of public funds.
At the same time, the HSC agreed that there should be a review of the participation of GPs in occupational health practice. The Commission supported the provision of a training and qualification scheme appropriate for doctors working for only a small part of their time in industry. It recognised ‘the important role of trained occupational health nurses … which is frequently misunderstood and … could be widened in scope’.
In 1986 the HSC issued a statement of policy in response to the Gregson Report. It declined at that stage to formulate a Code of Practice. Instead it initiated a programme of action. This included:
the preparation of guidelines for employers on such matters as the benefits and availability of OH services;
a publicity campaign especially aimed at small firms about the appropriate use of OH services;
the encouragement of new projects by the Industry Advisory Committees (organisations set up within particular industries, under the aegis of the HSE, to make recommendations to the HSC);
the promotion by the HSE of conferences and seminars for the exchange of practical information about the provision of OH services;
liaison with training bodies to promote the training of OH specialists and make managers more aware of health and safety;
the improvement of co‐ordination with the National Health Service;
co‐ordination between the organisations involved in the provision of OH services, including larger employers, public and professional bodies, academic departments, group services and independent consultancies.
Many health professionals working in occupational health criticised what they saw as a lack of resolve in the HSC. However, the ILO Convention did have an indirect effect on the law of the United Kingdom, because it was one of the important influences which led to the European Community’s Framework Directive, incorporated into UK law in the Management of Health and Safety at Work Regulations 1992 (Chapter 5).
Further on the international front the World Health Organization has developed a global strategy on occupational health for all. It published Good Practice in Occupational Health in 2002. In 2007 the World Health Assembly endorsed the WHO Global Plan of Action on Workers’ Health (2008–2017). The Assembly urged Member States to improve the performance of and access to occupational health services as well as working towards full coverage for all workers to basic occupational health services for the primary prevention of occupational disease and injury. The service provider should aim towards establishing and maintaining a healthy and safe work environment, maintaining a well performing and motivated workforce, preventing work‐related disease and accidents, and maintaining and promoting the work ability of workers.
The emergence of different forms of employment like the gig economy and zero hours contracts, discussed in Chapter 7, have serious implications for the protection of the health of the workers. In 2019 Maria Neira, director of public health and environment at the World Health Organization, said this:
Most workers in informal and precarious employment, gig economy, care economy, migrant and domestic workers, don’t have regulatory protection of their health and safety at work, occupational health services, and social security. We want the future of work to close,