Occupational Health Law. Diana Kloss
applicants through showing that the employer cares about the health of its workers.
The HSE’s guide Successful Health and Safety Management (1997) included five case studies. An important common denominator is the adoption of a total loss control approach which seeks to identify and eliminate risks, whether or not they lead to injury. For example, a patch of leaking oil could lead to slipping, a fire, breakdown of the machinery, or may have no adverse consequences. If patches of oil are eliminated, then there will be no risk, and no loss. One case study concerned a construction site where the costs of accidents amounted to 8.5 per cent of tender price. Many costs were uninsured, including legal costs, expenditure on emergency supplies, overtime working and temporary labour, and loss of expertise and experience.
The majority of accidents and incidents are not caused by careless workers but by failures in control (either within the organisation or within the particular job) which are the responsibility of management.
The guidance was updated as Managing for health and safety in 2013.
Most employed people work for employers whose workforce is too small for a comprehensive in‐house occupational health service. Research from the DWP in 2011 suggested that only 13 per cent of employers reported providing access to occupational health services. But the specific needs of SMEs can be met in a number of ways. A qualified occupational health nurse can be employed full‐time or part‐time, a part‐time visiting doctor may be appointed, the safety officers can have a key role in introducing and monitoring measures to control the working environment and in checking on their adequacy and effectiveness. Some firms become members of a group occupational health service which provides occupational health facilities on a shared basis to a number of local firms. Some large organisations with comprehensive in‐house services are prepared to offer facilities to small local firms, and the local NHS Trust may contract out services. Increasingly, occupational health services are provided by commercial companies operating on a consultancy basis, including private health insurers like Nuffield Health.
These services are demonstrably cost‐effective. Several examples were given by the Health and Safety Executive. The first is an organisation requiring a high level of employee fitness which has a dispersed workforce of some 2500 people based at 26 sites, some of which are 30 miles or more from headquarters. Medical surveillance is carried out at headquarters by a part‐time medical adviser, costing the employer both overtime payments and travelling expenses. The employment of a nurse to visit all the sites and refer to headquarters only those employees who have to see the medical adviser is more than compensated by reductions in overtime and travelling expenses for the workers. A second example is a chemical company employing over 1000 people and concerned about absence from work due to muscle and joint disorders. It arranges for a self‐employed physiotherapist to attend three mornings a week. The employer benefits greatly from the reduction in absences from work from sickness and attending for treatment outside the workplace. Easy access to the physiotherapy service also assists early treatment which is often essential to a good outcome. Finally, a company using isocyanates requires health surveillance of the workforce. EMAS advises the company to contact a local GP. The GP notices other occupational health problems, such as skin conditions and stress‐related symptoms. This leads to regular workplace visits which improve the health status of the workforce and benefit manager/worker relationships.
The HSE has published information about the tax and National Insurance treatment of occupational health support. An employer is able to claim a deduction against business profits in providing health‐related benefits to employees, provided the expenditure is wholly and exclusively for the purpose of the business. The benefit of private medical care provided free or cheaply by employers to employees is subject to tax on the employee, though £500 of care per annum recommended by occupational health is now tax free. However, the following benefits are not subject to income tax: medical and other treatment for the consequences of work‐related accidents or ill health, health screening and check‐ups, welfare counselling, equipment and services for disabled workers, employee‐only recreational and sporting facilities. This is as long as the benefits are provided by the employer directly to the employee. If the employee is given money to pay for the benefits he will have to pay income tax.
In 2017 the Society of Occupational Medicine (SOM) published Occupational Health: the value proposition by Dr Paul Nicholson. The SOM report is divided into sections: making the business case, the legal, moral, business and financial imperatives for investing in occupational health, the evidence for investing in occupational safety and health and workplace promotion, and finally the evidence for investing in occupational health services. Nicholson states that legal, financial and moral reasons and reputational risk are the key drivers for employers to invest in healthy workplaces and occupational health and safety. He highlights the burden of sickness absence. Minor illnesses are the commonest reason for absence, but the greatest number of days’ absence is due to musculoskeletal and mental health problems. One employer survey reported that sickness absence was estimated to cost UK business £28.8 billion a year. In addition, long‐term sickness absence is a huge cost to the state in welfare benefits.
1.4 The Employment Medical Advisory Service and Appointed Doctors
In 1833 and 1844 the Factory Acts required child workers to be examined by a local surgeon or physician to assess whether they were under the legal minimum working age (nine). The 1855 Factory Act conferred on these Certifying Factory Surgeons the task of certifying that young people were not incapacitated for work and of investigating industrial accidents. The doctor was independent both of the employer and of the employee, though paid by the factory owner. Later in the century, legislation required the Certifying Factory Surgeons also to investigate cases of industrial disease. In addition, employers were compelled to pay Appointed Surgeons to undertake regular medical examination of those working with specified substances like lead and phosphorus. The first full‐time Medical Inspector of Factories was appointed in 1898.
Part‐time medical practitioners have, therefore, conducted medical examinations in industry for more than a century. They now operate under the supervision of full‐time specialists in occupational medicine, the Employment Medical Advisory Service (EMAS) and are called Appointed Doctors (ADs). Their principal function is to undertake examinations of workers in the workplace and to assess their fitness for work when the employer is bound by statute to carry out regular health surveillance. The ADs are appointed by the Health and Safety Executive through EMAS in respect of a particular company or companies and premises. EMAS is able to ask for evidence of occupational health qualifications and experience when making appointments, though these are not mandatory legal requirements. The ADs are obliged to comply with both the clinical and administrative procedures set by EMAS; they are subject to inspection by Employment Medical Advisers. It is very important that proper clinical records are kept and statistical returns made to EMAS. If the work of the AD is unsatisfactory, his appointment may be revoked without a reason being stated or an explanation given. The employer has to pay fees for medical surveillance required by law.
The functions of EMAS are laid down in section 55 of the Health and Safety at Work Act. It undertakes the following responsibilities:
Advice to the inspectorate on the occupational health aspects of Regulations and Approved Codes of Practice (Chapter 5).
Regular examinations of persons employed on known hazardous operations.
Other medical examinations, investigations and surveys. An Adviser has power to require an employer to permit him to carry out a medical examination of any employee whose health the Adviser believes may be in danger because of his work.
Advice to the HSE, employers, trade unions and others on the occupational health aspects of poisonous substances, immunological disorders, physical hazards, dust, and mental stress, including setting standards of exposure to harmful processes and substances.
Research into occupational health.
Advice on the provision of occupational health and first aid services.
Advice