Occupational Health Law. Diana Kloss
rights, health and safety services, regulatory and social protection and those who do not. The current system of regulations, services and practice of occupational health and safety is a product of 20th century forms of work and organisation of the economy‐standard employment in big enterprises with social protection and regulatory control. The system is not any more suitable for the new forms of work and work organisation – it needs to evolve to ensure no one is left behind. We need a reform of occupational safety and health governance and services. The lack of collaboration between health and labour sectors in countries is a major obstacle for addressing the health and safety challenges from a changing world of work.
Developments in the last 25 years
In the last 25 years there has been a sea change in the attitude of the British government to occupational health. A White Paper, The Health of the Nation, was published in 1992. Successive governments since the inauguration of the National Health Service after World War II had come to realise that spending on health care must be contained. The creation of an internal market by separating the authorities who provide health care from those who purchase it was one strategy to try to secure better value for money. Another was to try to encourage the population to take care of its own health. The White Paper demonstrated the government’s commitment to preventive medicine. It selected five key areas in which national targets were fixed. These were coronary heart disease and stroke, cancers, mental illness, HIV/AIDS and sexual health, and accidents.
The White Paper emphasised the importance of a healthy workplace and proposed the setting up of a task force to examine and develop activity on health promotion in the workplace. It also encouraged the NHS to set an example to other employers to show what can be achieved. The NHS Management Executive set up a task group of NHS managers, Health Education Authority representatives and professionals to review the way in which the NHS promoted the health of its own employees.
Further important proposals were initiated in 1998. A Green Paper Our Healthier Nation proposed a ten‐year strategy for occupational health, to be set out in a consultation paper from the HSC. The Occupational Health Strategy Unit within the HSE’s Health Directorate, set up in 1996, was charged with the responsibility of developing a national ‘vision for occupational health’.
At the same time there was a marked increase in the numbers of regulations governing health and safety at work, particularly those originating in European Community Directives. Many of these were designed to prevent long‐term injury to health, as compared to the prevention of accidental injury. Health professionals with the necessary training and expertise are especially valuable to employers who need advice on the implementation of the regulations and the provision of health surveillance to ensure that the employees are not suffering adverse effects from their work. Perhaps the most important of these regulations are the Management of Health and Safety at Work Regulations 1992, implementing the EC Framework Directive. These oblige all employers, with minor exceptions, to make a suitable and sufficient assessment of the risks to the health and safety of their employees, and to those not in their employment, arising out of the conduct of their undertakings. Every employer shall ensure that his employees are provided with such health surveillance as is appropriate. The Approved Code of Practice (since abandoned) advised that, at least in some instances, this would necessitate the services of ‘an Occupational Health Nurse’ or medical surveillance by ‘an appropriately qualified practitioner’. Taken with the emphasis in the regulations on the need to employ competent persons, it would seem that the employment of health professionals with specialist qualifications in occupational health was at last gaining official recognition. An Occupational Health and Safety Lead Body was established to develop vocational qualifications for health and safety practitioners.
Amendments to the Approved Code of Practice (no longer in force) accompanying the Management Regulations 1999 gave guidance on the appointment of competent persons. Paragraph 49 stated:
Employers who appoint doctors, nurses or other health professionals to advise them on the effects of work on employee health, or to carry out certain procedures, for example health surveillance, should first check that such providers can offer evidence of a sufficient level of expertise or training in occupational health. Registers of competent practitioners are maintained by several professional bodies, and are often valuable.
Competence does not necessarily depend on paper qualifications, but may also require an understanding of relevant best practice, an awareness of the limitations of one’s own experience and knowledge, and the willingness and ability to supplement existing experience and knowledge, when necessary, by obtaining external help and advice. A British Standard (BS 8800) was published in 1996: Guide to occupational health and safety management systems. BS 8800 is regularly updated. In 2018 a comprehensive International Standard was published: BS ISO 45001.
The Health and Safety Commission expressed one of its priorities as the establishment of the key points of attack in improving occupational health and identifying the extent of occupational ill health, taking appropriate action to exploit the linkages between occupational health and the government’s ‘Health of the Nation’ initiative.
The assessment and management of health risks – the central requirement of the various regulations – are often more complex or involve greater uncertainty than for occupational safety risks. Targeted guidance on assessment and management, and on selecting expert advice, will be needed by employers and employee representatives, as well as by health and safety inspectors, as an essential tool to ensure effective action.
The Commission planned to continue to give high priority to epidemiological research. A successful consultant‐based scheme for the collection of data relating to occupational lung disease was extended to a number of other work‐related diseases. Subsequently some GPs also became involved. This data collection scheme is now known as THOR (The Health and Occupation Reporting Network) and is administered by the Centre for Occupational and Environmental Health of the University of Manchester. More attention was paid to GPs, who may fail to identify the connection between a patient’s work and their medical condition. The Health and Safety Executive in 1992 produced a booklet on occupational health for family doctors: Your Patients and their Work and the Faculty and Society of Occupational Medicine and the Royal College of General Practitioners, supported by the Department for Work and Pensions, produced a joint publication: the Health and Work Handbook.
In 2000 the Department of the Environment, Transport and the Regions published a Strategy Statement (Chapter 5). It set out targets for reducing the number of days lost through illness and injury at work. The role of occupational health was seen as central to achieving this reduction. The HSC’s report, An Occupational Health Strategy for Great Britain (2001), set out a number of objectives. Interested parties planned to work together to achieve the following targets by 2010:
a 20 per cent reduction in the incidence of work‐related ill health;
a 20 per cent reduction in ill health to members of the public caused by work activity;
a 30 per cent reduction in the number of work days lost due to work‐related ill health;
that everyone currently in employment but off work due to ill health or disability is, where necessary and appropriate, made aware of opportunities for rehabilitation back into work as early as possible; and
that everyone currently not in employment due to ill health or disability is, where necessary and appropriate, made aware of and offered opportunities to prepare for and find work.
A Partnership Board was set up to oversee the implementation and delivery of the strategy, and responsible to them was a Programme Action Group to facilitate the delivery of each of the strategy’s five programmes of work (compliance, continuous improvement, knowledge, skills and support mechanisms). Programme 1 (to improve the law in relation to occupational health and compliance with it) was the most relevant to this book. The aim was to encourage the important work of developing standards, or guidance on best practice, and to support occupational health legislation, as well as enforcing