Occupational Health Law. Diana Kloss
to facilitate more conversations to agree effective workplace modifications; reforming Statutory Sick Pay; measures to improve the availability of high‐quality, cost‐effective OH services for employers; and improving advice and support from government for employers to understand and act on their responsibilities.
Standard setting
The Black Report pointed to the lack of established quality standards for occupational health provision. Dr Paul Nicholson led the development by the Faculty of Occupational Medicine of a system of accreditation of Safe Effective Quality Occupational Health Services (SEQOHS), first introduced in 2010.
In 2011 the government’s response to the Boorman review directed that all OH services in the NHS should work towards acquiring accreditation. Employers are advised to look for SEQOHS approval when appointing an OH provider.
Education and training for OH professionals
The shortage of trained professionals skilled in occupational health, at a time when the need for OH support has obtained increased recognition, is in 2020 approaching crisis proportions. Many practitioners are nearing retirement and fewer recruits are entering the professions. This is especially acute for OH physicians and nurses. The Council for Work and Health established a small committee of members chaired by Professor John Harrison to examine the problem and make recommendations. Their second report: Planning the Future: implications for occupational health delivery and training (2016) was particularly influential. A National School of Occupational Health, of which Professor Harrison was the first head, was created in 2014 as a collaboration between Health Education England and the Faculty of Occupational Medicine (FOM). Although initially confined to training in occupational medicine, the intention at first was that it should develop OH training in other professions. An OH nurse, Mandy Murphy, was appointed deputy head and it was envisaged that eventually other healthcare professions might come within scope. However, in 2018 it was decided to limit its activities to the recruitment and training of doctors.
For some years there had been difficulties in the training of OH nurses. The Nursing and Midwifery Council (NMC) included them on Part Three of the nursing register (under review), together with health visitors and school nurses, but it was felt by many in the occupational health professions that OH training involves the acquisition of such different skills that the current requirements were inappropriate. A group of senior OH nurses, working with the FOM, set up a Faculty of Occupational Health Nursing (FOHN) in 2018 to develop competence standards and a curriculum. Meanwhile the occupational physiotherapists and occupational therapists were active in developing competence standards and training in their specialties, as were professionals involved with vocational rehabilitation.
Occupational health research
In every area of medical and nursing practice it is important that procedures are evidence‐based. For that reason the role of academic research is as vital in occupational health as in clinical medicine, as the Black Report stressed. Unfortunately, the number of institutions engaging in OH research has declined in recent years. University departments have closed. The Health and Work Development Unit (HWDU), a partnership between the Royal College of Physicians and the Faculty of Occupational Medicine, was closed in 2014 when funding was withdrawn after seven years. The Unit, led by Dr Sian Williams, was responsible for the creation of several important clinical guidelines relevant to health and work. In 2019 the Society of Occupational Medicine published a report: The Value of Occupational Health Research: history, evolution and the way forward, co‐authored by Professor Ewan MacDonald of the University of Glasgow. It called for the creation of a national Centre for Work and Health to coordinate UK occupational health research and best practice.
Work as a clinical outcome
The lack of training in occupational medicine for medical, nursing and allied health professionals in the universities has led to a lack of appreciation among clinicians of the effects of health on work and work on health. Clinicians should be informed of what work their patients do and should assess the success or otherwise of clinical interventions partly by whether a patient of working age is able to remain in or return to work. In 2019 a large number of organisations concerned with health care agreed a healthcare professionals’ consensus statement:
Work which is appropriate to an individual’s knowledge, skills and circumstances and undertaken in a safe, healthy and supportive working environment, promotes good physical and mental health, helps to prevent ill‐health and can play an active part in helping people recover from illness. Good work also rewards the individual with a greater sense of self‐worth and has beneficial effects on social functioning … The crucial relationship between work and health dictates that, where appropriate, remaining in or returning to work must be a critical outcome measure for success in the treatment and support of working age people’.
The disability employment gap
Less than half of disabled people are in employment (48 per cent) compared with 80 per cent of the non‐disabled population. 4.6 million disabled people and people with long‐term health conditions are out of work. People who are unemployed have higher rates of mortality and a lower quality of life.
In a Green Paper published in 2016: Improving Lives the Department of Work and Pensions and the Department of Health and Social Care initiated consultation on how to achieve their ambition of halving the disability employment gap. Its wide‐ranging proposals covered health services, welfare provision, and the role of employers, and included the provision of better occupational health support. An important development was the suggestion that models of integrating occupational health within NHS primary and secondary care services provision could be explored, re‐orientating a part of the NHS occupational health workforce to provide patient services directly. ‘Potentially it may also be possible to expand availability of occupational health, at least for people with more complex needs who do not have occupational health provided by their employer, are self‐employed, or are out of work’.
The projected White Paper following the consultation did not appear. Instead, the government published its reply as a policy paper: Improving lives: the future of work, health and disability (2017). It took the opportunity also to reply to Thriving at work: the Stevenson/Farmer Review of mental health and employers (Department for Work and Pensions, 2017) and Good Work: the Taylor Review of Modern Working Practices (Department for Business, Energy and Industrial Strategy, 2017). As regards occupational health, it stated that evidence showed that effective OH provision can help protect and promote employee health and wellbeing, and prevent unnecessary sickness absence long‐term, but that the current model of OH provision did not meet the needs of employers or individuals. An Expert Working Group on occupational health was set up to advise on reform and research was commissioned to understand better the current market supply and delivery structures of OH provision and its operation. The feasibility of integrating OH into primary care pathways was explored, in particular with Greater Manchester Combined Authority and the Scottish Government. In 2019 the Work and Health Unit began discussions on proposals for reform in Health is everyone’s business (above).
1.2 The legal obligations of the employer
The law imposes a number of specific obligations on the employer relating to the health of their workers and, more generally, the Health and Safety at Work Act obliges them to ensure their health and safety so far as is reasonably practicable. As yet, there is no specific duty in our law on the employer to provide qualified medical or nursing staff at the place of work.
The Health and Safety (First Aid) Regulations 1981 oblige employers to provide adequate and appropriate first‐aid equipment and facilities and an appropriate number of adequately qualified and trained persons to render first aid to his employees. The First Aid Approved Code of Practice ceased to have effect in 2013 and was replaced by HSE Guidance which was updated in 2018. Also, in 2013 the requirement that the HSE approve first aid training and qualifications was removed. Employers must assess