Occupational Health Law

Kloss on 'Occupational Health Law' has become the standard reference work on the subject since it was first published in 1989. Detailed but highly readable, it provides an essential source of information for health professionals working in occupational health and also for human resources staff. In the years since the 4th edition was written there have been many changes in the field of occupational health, which has achieved a higher profile nationally with the publication of Dame Carol Black's review of the health of Britain's working age population in 2008. This edition, which has been fully revised, includes new sections on age discrimination and expert witnesses, and the sections on discrimination, especially disability discrimination, the Working Time Regulations, stress related illness, corporate manslaughter and confidentiality, in particular, have been substantially updated. * The established work on the subject * Fully revised in line with current legislation and case law * Essential reference for occupational health, personnel and health and safety departments * 'Essential reading... clear, straight to the point... superb value for money' —Occupational Safety and Health Diana Kloss is Chair of the newly created Council of Occupational Health Professionals, set up after the Black Review.  She is a barrister and part-time employment judge in Manchester, and also an Honorary Senior Lecturer in Occupational Health Law in the University of Manchester.  She has considerable experience of employment law and medical law, both in practice and as a lecturer and researcher.    Diana is an ACAS arbitrator and mediator and a member of the Industrial Injuries Advisory Council and the CJD Incidents Panel.  In 2009 she was appointed MBE for services to occupational health. CONTENTS Preface to the Fifth Edition Abbreviations Table of Cases Table of Statutes Table of Statutory Instruments 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 The European Convention on Human Rights and the Human Rights Act 1998 International Labour Organization 1 The Provision of Occupational Health Services 1.1 The development of occupational health services 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 2.2 Liability for criminal acts 2.3 Liability for negligence 2.4 Liability to the workers 2.5 Duties under the Disability Discrimination Act 1995 2.6 Professional standards 2.7 Consent to medical treatment 2.8 Liability to the employer 2.9 Liability to the public 2.10 Health care workers with blood-borne viruses 2.11 Professional indemnity 2.12 The conduct of research 2.13 Expert witnesses 2.14 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 Relationship with other health professionals 3.6 Medical audit 3.7 Disclosure of information to researchers 3.8 Disclosure in the public interest 3.9 Legal obligation to disclose information 3.10 Legal obligation to reply to questions 3.11 Legal professional privilege 3.12 Pre-trial disclosure in civil proceedings 3.13 Confidential information in the courts 3.14 Expert witnesses 3.15 The patient’s right to know 3.16 Computer records and data protection 3.17 Information Commissioner’s Employment Practices Data Protection Code: Information about Workers’ Health 3.18 Human Rights Act and privacy 3.19 Freedom of Information Act 2000 3.20 The employer’s confidence 3.21 Official secrets 3.22 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 Act 1995 4.5 Sex Discrimination Acts 1975 and 1986 4.6 Race Relations Act 1976 4.7 Rehabilitation of Offenders Act 1974 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 and ACOP 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 5.7 Crown immunity 5.8 General duties under the Health and Safety at Work Act 1974 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 and ACOP 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 1992 5.18 Manual Handling Operations Regulations 1992 5.19 Health and Safety (Display Screen Equipment Regulations) 1992 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: Welfare Benefits 6.1 The purposes of a system of compensation 6.2 An outline of the scheme 6.3 The benefits available 6.4 Making a claim 6.5 Review of decisions 6.6 Compensation for accidents 6.7 Accidents on the way to work 6.8 Accidents during breaks from work 6.9 Emergencies 6.10 Compensation for prescribed diseases 6.11 Sequelae 6.12 Recrudescence 6.13 Pneumoconiosis 6.14 Assessment of disablement 6.15 Loss of faculty 6.16 Disablement 6.17 Multiple disabilities 6.18 Reduced earnings allowance (REA) 6.19 Incapacity for work 6.20 The regular occupation 6.21 Alternative employment 6.22 Subsequent ill-health 7 The Law of Compensation: Civil Liability 7.1 The tort action 7.2 A compensation culture? 7.3 The employer’s duty of care 7.4 What is negligence? 7.5 Post-traumatic stress disorder 7.6 Breach of statutory duty 7.7 Liability for the negligence of others 7.8 Causation 7.9 Liability of the employer to non-employees 7.10 Duty to the unborn child 7.11 Assumption of risk and the fault of the claimant 7.12 Paternalism 7.13 Several potential defendants 7.14 Attempts to exclude liability 7.15 Product liability 7.16 Damages 7.17 The living claimant 7.18 Fatal accidents 7.19 Exemplary damages 7.20 Limitation of actions 7.21 Alternatives to the tort-based system 8 Employment Law 8.1 Introduction 8.2 The contract of employment 8.3 Contractual sick pay 8.4 Statutory sick pay (SSP) 8.5 Proof of sickness 8.6 The control of absenteeism 8.7 Notification to the employer 8.8 The employer’s right to suspend 8.9 Medical suspension 8.10 Changes in contractual terms 8.11 Transfer of undertakings 8.12 The right to dismiss 8.13 The concept of dismissal 8.14 The reason for the dismissal 8.15 Dismissal for incompetence 8.16 Ill-health dismissals 8.17 Medical reports 8.18 Ill-health retirement 8.19 ‘No illness’ agreements 8.20 Disabled workers 8.21 Dismissal for misconduct 8.22 Ill-health and misconduct 8.23 The role of occupational health in disciplinary proceedings 8.24 Selection for redundancy 8.25 Contravention of a statute 8.26 Default retirement age 8.27 Some other substantial reason for dismissal 8.28 The importance of procedure 8.29 The right to refuse to work in unsafe conditions 8.30 Whistleblowers 8.31 Time off for trade union activities 8.32 Working Time Regulations 1998 9 Equal Opportunities 9.1 The concept of discrimination 9.2 Direct and indirect discrimination 9.3 Victimisation 9.4 Harassment 9.5 Gender reassignment 9.6 Proof of discrimination 9.7 Remedies 9.8 Special laws protecting women workers 9.9 Pregnancy dismissals and maternity leave 9.10 Maternity pay 9.11 Parental leave and time off for dependants 9.12 Children and young persons 9.13 Workers with a disability 9.14 The definition of disability 9.15 Types of disability discrimination 9.16 Discrimination by association 9.17 Justification of disability-related and indirect discrimination 9.18 Reasonable adjustments 9.19 Occupational Health and the DDA 9.20 Age discrimination Appendix A: Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995, Schedule 3 Appendix B: Control of Substances Hazardous to Health Regulations 2002, Regulation 11 and Schedule 6, and Approved Code of Practice paragraphs 211–238 Appendix C: Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 Appendix D: Management of Health and Safety at Work Regulations 1999, Regulation 6, and Approved Code of Practice, paragraphs 41–45 Appendix E: Disability Discrimination Act 1995: Guidance on matters to be taken into account in determining questions relating to the definition of disability (excerpts) Bibliography Index