Diana Kloss - Occupational Health Law

1 Cover

2 Preface to the Sixth Edition

3 Abbreviations

4 Table of Cases

5 Table of Statutes

6 Table of Statutory Instruments

7 General IntroductionLaw 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

8 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

9 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 2.12 Professional indemnity 2.13 The conduct of research 2.14 Expert witnesses 2.15 The rights of occupational health professionals

10 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 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 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

11 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

12 5 Health and Safety at Work 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 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)

13 6 The Law of Compensation 6.1 The challenge 6.2 State benefits 6.3 Civil liability 6.4 A compensation culture? 6.5 The cause of action 6.6 Breach of statutory duty 6.7 Negligence 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 6.25 Fatal accidents 6.26 Exemplary damages 6.27 Limitation of actions

14 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

15 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 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

16 Appendix A: Control of Substances Hazardous to Health Regulations 2002, Regulation 11 Health SurveillanceControl of Substances Hazardous to Health Regulations 2002, Regulation 11 Health Surveillance Control of Substances Hazardous to Health Approved Code of Practice (excerpts)

17 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)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 Section B: Substantial Section C: Long‐term Section D: Normal day‐to‐day activities Appendix

18 Bibliography

19 Index

20 End User License Agreement

1 Cover

2 Table of Contents

3 Begin Reading