Occupational Health Law

DIANA KLOSS MBE is a practising barrister and former fee paid employment judge. She was the first Chair of the UK Council for Work and Health and is now its Honorary President. She is Visiting Professor at London South Bank University, Honorary Senior Lecturer in Occupational Health Law at the University of Manchester, UK, and Honorary Lecturer at Cardiff University, UK. Diana has extensive experience in employment law and occupational health law as a barrister, employment judge, lecturer, ACAS arbitrator and mediator, and researcher. She was awarded the MBE for services to occupational health.

• Preface to the Sixth Edition ixAbbreviations xiTable of Cases xiiiTable of Statutes xxiTable of Statutory Instruments xxiiiGeneral Introduction 1Law and ethics 1The sources of English law 4Judicial review of administrative action 5Criminal and civil law 5The geographical extent of the law 6The law of the European Union 7Brexit 12The European Convention on Human Rights and the Human Rights Act 1998 13International Labour Organization 17Workers’ rights and data protection after Brexit 171 The Provision of Occupational Health Services 191.1 The development of occupational health services 191.2 The legal obligations of the employer 301.3 Who pays? 311.4 The Employment Medical Advisory Service and Appointed Doctors 341.5 The occupational health physician 351.6 The occupational health nurse 371.7 The inter‐disciplinary nature of occupational health 391.8 The relationship between the occupational health service and the general practitioner 402 The Legal Status and Liability of the OH Professional 412.1 Servants and independent contractors (and workers) 422.2 Liability for criminal acts 432.3 Liability for negligence 452.4 Liability to the workers 492.5 The duty of candour 522.6 Duties under the Equality Act 2010 522.7 Professional standards 542.8 Consent to medical treatment 542.9 Liability to the employer 572.10 Liability to the public 572.11 Health care workers with a blood‐borne virus 582.12 Professional indemnity 612.13 The conduct of research 612.14 Expert witnesses 642.15 The rights of occupational health professionals 653 Medical Records and Confidentiality 673.1 The ownership of records 683.2 How long should records be kept? 693.3 The duty of confidence 693.4 The consent of the patient 723.5 Consent at common law and under the General Data Protection Regulation 733.6 Computer records and data protection 743.7 General Data Protection Regulation 743.8 Relationship with other health professionals 833.9 Medical audit 843.10 Disclosure of information to researchers 843.11 Disclosure in the public interest 853.12 Legal obligation to disclose information 883.13 Legal obligation to reply to questions 913.14 Legal privilege 933.15 Pre‐trial disclosure in civil proceedings 943.16 Confidential information in the courts 953.17 Expert witnesses 953.18 The patient’s right to know 973.19 Information Commissioner’s Employment Practices Data Protection Code: Information about Workers’ Health (2011) 1003.20 Human Rights Act and privacy 1023.21 Freedom of Information Act 2000 1043.22 The employer’s confidence 1073.23 Official secrets 1093.24 Defamation 1094 Pre‐employment Screening and Health Surveillance 1114.1 The purpose of ‘medical assessment’ 1124.2 Pre‐employment health screening 1144.3 Human Rights Act 1998 1154.4 Disability discrimination 1164.5 Sex discrimination 1164.6 Racial and religious discrimination 1174.7 Rehabilitation of offenders 1184.8 Does the job applicant have to answer the employer’s questions? 1184.9 Examination for entry to the pension scheme 1224.10 Surveillance of the existing workforce 1224.11 Levels of routine health surveillance 1244.12 Legal duty to provide health surveillance 1254.13 Control of Substances Hazardous to Health (COSHH) Regulations 2002 1264.14 Management of Health and Safety at Work Regulations 1999 1314.15 Drugs and alcohol testing 1314.16 Genetic testing 1345 Health and Safety at Work: The Criminal Law 1375.1 Criminal sanctions 1375.2 Health and Safety Executive 1475.3 Health and safety statutes 1475.4 Reasonable practicability 1485.5 Civil liability 1505.6 The powers of the inspectorate 1515.7 Crown immunity 1555.8 General duties under the Health and Safety at Work Act 1974 1565.9 Safety representatives and safety committees 1605.10 Access to information 1635.11 The control of substances hazardous to health 1655.12 Control of Noise at Work Regulations 2005 1695.13 The 1992 regulations 1705.14 Management of Health and Safety at Work Regulations 1999 1715.15 Workplace (Health, Safety and Welfare) Regulations 1992 and ACOP 1725.16 Provision and Use of Work Equipment Regulations (PUWER) 1998 1735.17 Personal Protective Equipment at Work Regulations 2002 1745.18 Manual Handling Operations Regulations 1992 1745.19 Health and Safety (Display Screen Equipment Regulations) 1992, amended 2002 1755.20 Control of Vibration at Work Regulations 2005 1765.21 Protection of the environment 1775.22 EU Regulation on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) 1786 The Law of Compensation 1796.1 The challenge 1796.2 State benefits 1806.3 Civil liability 1826.4 A compensation culture? 1846.5 The cause of action 1856.6 Breach of statutory duty 1856.7 Negligence 1866.8 Noise induced hearing loss 1886.9 Hand–arm vibration syndrome 1896.10 Work‐related upper limb disorder 1896.11 Work‐related stress 1906.12 Health and Safety Executive guidance 1956.13 Post‐traumatic stress disorder 1966.14 Damage 1976.15 Causation 1986.16 Vicarious liability 2016.17 Liability of the employer to non‐employees 2036.18 Duty to the unborn child 2046.19 Assumption of risk and the fault of the claimant 2056.20 Attempts to exclude liability 2066.21 Paternalism 2076.22 Several potential defendants 2096.23 Product liability 2106.24 Damages 2126.25 Fatal accidents 2156.26 Exemplary damages 2166.27 Limitation of actions 2167 Employment Law 2197.1 Introduction 2197.2 The contract of employment 2227.3 Contractual sick pay 2287.4 Statutory sick pay (SSP) 2307.5 Proof of sickness 2317.6 The control of absenteeism 2327.7 Notification to the employer 2337.8 The employer’s right to suspend 2347.9 Medical suspension 2347.10 Changes in contractual terms 2357.11 Transfer of undertakings 2367.12 The right to dismiss 2367.13 The concept of dismissal 2387.14 The reason for the dismissal 2407.15 Dismissal for incompetence 2417.16 Ill‐health dismissals 2427.17 Medical reports 2437.18 Ill‐health retirement 2477.19 ‘No illness’ agreements 2497.20 Disabled workers 2497.21 Dismissal for misconduct 2497.22 Ill health and misconduct 2517.23 The role of occupational health in disciplinary proceedings 2527.24 Selection for redundancy 2537.25 Contravention of a statute 2547.26 Some other substantial reason for dismissal 2547.27 The importance of procedure 2557.28 The right to refuse to work in unsafe conditions 2567.29 Whistleblowers 2587.30 Time off for trade union activities 2607.31 Working Time Regulations 1998 2618 Equal Opportunities 2638.1 The concept of discrimination 2648.2 Direct and indirect discrimination 2668.3 Victimisation 2698.4 Harassment 2698.5 Gender reassignment 2728.6 Proof of discrimination 2728.7 Remedies 2738.8 Special laws protecting women workers 2738.9 Pregnancy dismissals and maternity leave 2788.10 Maternity pay 2818.11 Parental leave and time off for dependants 2818.12 Family friendly measures 2828.13 Children and young persons 2838.14 Workers with a disability 2848.15 The definition of disability 2858.16 Types of disability discrimination 2928.17 Discrimination by association 2958.18 Justification of disability‐related and indirect discrimination 2968.19 Pre‐employment screening 2988.20 Reasonable adjustments 3008.21 Occupational pension schemes 3078.22 Occupational health and the Equality Act 3088.23 Employer’s knowledge of a disability 3118.24 Liability of employer/principal and employee/agent 3148.25 Age discrimination 315Appendix A: Control of Substances Hazardous to Health Regulations 2002, Regulation 11 Health Surveillance 319Appendix B: Equality Act 2010: Part 2: Guidance on matters to be taken into account in determining questions relating to the definition of disability (excerpts) 325Bibliography 347Index 353

"The latest edition is as accessible and informative as its predecessors, drawing together all the many strands of common and criminal law, international law, and medical and professional ethics of which OH professionals should be aware ... it’s the detail that makes Occupational Health Law a pleasure to read. Each chapter feels like a journey, starting with an aerial view of the legal landscape before exploring the winding streets of case law." – Occupational Health [at Work] - August/September 2020“Diana Kloss MBE is widely recognized as an eminent expert readily advising on points of occupational health law and understandably so due to her illustrious career as a practising barrister, a former fee-paid employment judge, lecturer and researcher. The first copy of this book was released 30 years ago and the most recent edition has been updated to reflect the changes over the 10 years since the fifth edition… This book is a source of reference and I found myself referring to it recently when needing to know access rights to occupational health records after death by surviving relatives. We all come across these scenarios within our professional practice, making this reference book an essential read whether held personally or kept within a department.” – The Journal of Occupational Medicine