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Diana Kloss. Occupational Health Law
Table of Contents
Guide
Pages
Occupational Health Law
Preface to the Sixth Edition
Abbreviations
Table of Cases
Table of Statutes
Table of Statutory Instruments
EU Regulations
General Introduction. Law and ethics
The sources of English law
Judicial review of administrative action
Criminal and civil law
The geographical extent of the law
The law of the European Union
Brexit
The European Convention on Human Rights and the Human Rights Act 1998
International Labour Organization
Workers’ rights and data protection after Brexit
1. The Provision of Occupational Health Services
1.1 The development of occupational health services
International developments
Developments in the last 25 years
Good work is good for you
Management of sickness absence
Standard setting
Education and training for OH professionals
Occupational health research
Work as a clinical outcome
The disability employment gap
1.2 The legal obligations of the employer
1.3 Who pays?
1.4 The Employment Medical Advisory Service and Appointed Doctors
1.5 The occupational health physician
1.6 The occupational health nurse
1.7 The inter‐disciplinary nature of occupational health
1.8 The relationship between the occupational health service and the general practitioner
2. The Legal Status and Liability of the OH Professional
2.1 Servants and independent contractors (and workers)
2.2 Liability for criminal acts
2.3 Liability for negligence
2.4 Liability to the workers
2.5 The duty of candour
2.6 Duties under the Equality Act 2010
2.7 Professional standards
2.8 Consent to medical treatment
2.9 Liability to the employer
2.10 Liability to the public
2.11 Health care workers with ablood‐borne virus
Blood‐borne virus health clearance
Hepatitis B
Hepatitis C
Clearance of infected HCWs to perform EPPs
Confidentiality concerning the infected health care worker
Patient notification exercises
2.12 Professional indemnity
2.13 The conduct of research
2.14 Expert witnesses
2.15 The rights of occupational health professionals
3. Medical Records and Confidentiality
3.1 The ownership of records
3.2 How long should records be kept?
3.3 The duty of confidence
3.4 The consent of the patient
3.5 Consent at common law and under the General Data Protection Regulation
3.6 Computer records and data protection
3.7 General Data Protection Regulation
Duties of the data controller (1) The duty to pay a fee to the Information Commissioner
(2) The duty to appoint a Data Protection Officer (DPO)
(3) The duty to observe the data protection principles (see box below)
(4) The duty to have a lawful basis for processing
(5) The duty to process data lawfully
(6) The duty to allow the data subject access to data about himself: subject access request (Art 15)
(7) The duty to ensure that data are accurate and up to date (Art 16 and 17)
(8) A duty not to act on personal data without giving the data subject an opportunity to justify or refute them (Art 22)
(9) The duty to keep data secure and report a personal data breach
3.8 Relationship with other health professionals
3.9 Medical audit
3.10 Disclosure of information to researchers
3.11 Disclosure in the public interest
3.12 Legal obligation to disclose information
Notification of suspicion of terrorism (Terrorism Act 2000)
3.13 Legal obligation to reply to questions
3.14 Legal privilege
3.15 Pre‐trial disclosure in civil proceedings
3.16 Confidential information in the courts
3.17 Expert witnesses
3.18 The patient’s right to know
3.19 Information Commissioner’s Employment Practices Data Protection Code: Information about Workers’ Health (2011)
3.20 Human Rights Act and privacy
3.21 Freedom of Information Act 2000
3.22 The employer’s confidence
3.23 Official secrets
3.24 Defamation
4. Pre‐employment Screening and Health Surveillance
4.1 The purpose of ‘medical assessment’
4.2 Pre‐employment health screening
4.3 Human Rights Act 1998
4.4 Disability discrimination
4.5 Sex discrimination
4.6 Racial and religious discrimination
4.7 Rehabilitation of offenders
4.8 Does the job applicant have to answer the employer’s questions?
4.9 Examination for entry to the pension scheme
4.10 Surveillance of the existing workforce
4.11 Levels of routine health surveillance
4.12 Legal duty to provide health surveillance
4.13 Control of Substances Hazardous to Health (COSHH) Regulations 2002
4.14 Management of Health and Safety at Work Regulations 1999
4.15 Drugs and alcohol testing
4.16 Genetic testing
5. Health and Safety at Work: The Criminal Law
5.1 Criminal sanctions
5.2 Health and Safety Executive
5.3 Health and safety statutes
5.4 Reasonable practicability
5.5 Civil liability
5.6 The powers of the inspectorate
Fee for intervention cost recovery scheme
Improvement and prohibition notices
5.7 Crown immunity
5.8 General duties under the Health and Safety at Work Act 1974
Section 2
Section 3
Section 4
Section 6
Section 7
Section 8
Section 9
5.9 Safety representatives and safety committees
5.10 Access to information
5.11 The control of substances hazardous to health
5.12 Control of Noise at Work Regulations 2005
5.13 The 1992 regulations
5.14 Management of Health and Safety at Work Regulations 1999
5.15 Workplace (Health, Safety and Welfare) Regulations 1992 and ACOP
5.16 Provision and Use of Work Equipment Regulations (PUWER) 1998
5.17 Personal Protective Equipment at Work Regulations 2002
5.18 Manual Handling Operations Regulations 1992
5.19 Health and Safety (Display Screen Equipment Regulations) 1992, amended 2002
5.20 Control of Vibration at Work Regulations 2005
5.21 Protection of the environment
5.22 EU Regulation on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH)
6. The Law of Compensation
6.1 The challenge
6.2 State benefits
Industrial Injuries Disablement Benefit (IIDB)
Reduced Earnings Allowance (REA)
Special cases
Conclusion
6.3 Civil liability
6.4 A compensation culture?
6.5 The cause of action
6.6 Breach of statutory duty
6.7 Negligence
Safe plant and equipment
Defective equipment
Safe system of work
6.8 Noise induced hearing loss
6.9 Hand–arm vibration syndrome
6.10 Work‐related upper limb disorder
6.11 Work‐related stress
6.12 Health and Safety Executive guidance
6.13 Post‐traumatic stress disorder
6.14 Damage
6.15 Causation
6.16 Vicarious liability
6.17 Liability of the employer to non‐employees
6.18 Duty to the unborn child
6.19 Assumption of risk and the fault of the claimant
6.20 Attempts to exclude liability
6.21 Paternalism
6.22 Several potential defendants
6.23 Product liability
6.24 Damages
General damages
Past financial loss
Future financial loss
6.25 Fatal accidents
6.26 Exemplary damages
6.27 Limitation of actions
7. Employment Law
7.1 Introduction
7.2 The contract of employment
7.3 Contractual sick pay
7.4 Statutory sick pay (SSP)
7.5 Proof of sickness
7.6 The control of absenteeism
7.7 Notification to the employer
7.8 The employer’s right to suspend
7.9 Medical suspension
7.10 Changes in contractual terms
7.11 Transfer of undertakings
7.12 The right to dismiss
7.13 The concept of dismissal
7.14 The reason for the dismissal
7.15 Dismissal for incompetence
7.16 Ill‐health dismissals
7.17 Medical reports
7.18 Ill‐health retirement
7.19 ‘No illness’ agreements
7.20 Disabled workers
7.21 Dismissal for misconduct
7.22 Ill health and misconduct
7.23 The role of occupational health in disciplinary proceedings
7.24 Selection for redundancy
7.25 Contravention of a statute
7.26 Some other substantial reason for dismissal
7.27 The importance of procedure
7.28 The right to refuse to work in unsafe conditions
7.29 Whistleblowers
7.30 Time off for trade union activities
7.31 Working Time Regulations 1998
8. Equal Opportunities
8.1 The concept of discrimination
8.2 Direct and indirect discrimination
8.3 Victimisation
8.4 Harassment
8.5 Gender reassignment
8.6 Proof of discrimination
8.7 Remedies
8.8 Special laws protecting women workers
8.9 Pregnancy dismissals and maternity leave
8.10 Maternity pay
8.11 Parental leave and time off for dependants
8.12 Family friendly measures
8.13 Children and young persons
8.14 Workers with a disability
8.15 The definition of disability
8.16 Types of disability discrimination
Indirect disability discrimination
Discrimination arising from a disability
8.17 Discrimination by association
8.18 Justification of disability‐related and indirect discrimination
8.19 Pre‐employment screening
8.20 Reasonable adjustments
8.21 Occupational pension schemes
8.22 Occupational health and the Equality Act
8.23 Employer’s knowledge of a disability
8.24 Liability of employer/principal and employee/agent
8.25 Age discrimination
Appendix A. Control of Substances Hazardous to Health Regulations 2002, Regulation 11 Health Surveillance
Control of Substances Hazardous to Health Approved Code of Practice (excerpts) The objectives of health surveillance
When health surveillance is appropriate
Suitable health surveillance
Health surveillance for exposure to biological agents
The person who carries out health surveillance procedures
Detection of an adverse health effect or identifiable disease
Continuing health surveillance after exposure has ceased
Health records
Disposing of records when a business ceases to trade
Access to employees’ records
Appendix B. Equality Act 2010: Part 2: Guidance on matters to be taken into account in determining questions relating to the definition of disability (excerpts) Section A: The Definition. Main elements of the definition of disability
Meaning of ‘impairment’
Persons with HIV infection, cancer and multiple sclerosis
Persons deemed to be disabled
Exclusions from the definition
People who have had a disability in the past
Section B: Substantial
Meaning of ‘substantial adverse effect’
The time taken to carry out an activity
The way in which an activity is carried out
Cumulative effects of an impairment
Effects of behaviour
Effects of environment
Effects of treatment
Progressive conditions
Severe disfigurements
Section C: Long‐term
Meaning of ‘long‐term effects’
Meaning of ‘likely’
Recurring or fluctuating effects
Likelihood of recurrence
Assessing whether a past disability was long‐term
Section D: Normal day‐to‐day activities
Meaning of ‘normal day‐to‐day activities’
Specialised activities
Adverse effects on the ability to carry out normal day‐to‐day activities
Environmental effects
Indirect effects
Effect of treatment or correction measures
Appendix
Bibliography
Index
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