Occupational health’s duty of care to employees

Work-related stress, depression and anxiety caused the loss of 13.8 million working days in 2006-07. According to the Health and Safety Executive’s (HSE’s) 2006 Improvement Notice against Dundee City Council, some of that absence can be avoided by access to adequate occupational health (OH) services. So, nothing new there.


But the UK’s historic approach to OH – that the NHS provides all the healthcare we need – may have been rocked by an organisation with the resources of the council being pointed towards the speciality as a proactive measure, rather than waiting for its staff to become ill and then be cured.


Under the Health and Safety at Work Act 1974 and its subordinate regulations, employers have a duty to ensure a safe place and system of work. Those that fail to do so face the criminal sanctions of fines and/or imprisonment.


The civil law requires those with responsibility for health and safety to employ properly trained and qualified staff, and to bear the cost of any civil action that ends with a finding of liability where injury has taken place.


Occupational health implications


OH practitioners fall into two categories: those who are in business on their own account, operating independently to provide services to clients and those who are employed by a specific organisation, which itself may be a provider of services.


If they operate from their own premises, they are, effectively, the occupier. If they go to provide their services or perform their duties on someone else’s premises, a duty of care then arises towards them as a lawful visitor under the Occupiers’ Liability Act 1957 (OLA).


A short digression: the 1957 Act covers the good guys the 1984 version of the Act applies to the other sort. Trespassers are entitled to have safe roofs to run across and non-slip paths for making their getaway. Either way, as the title indicates, the occupier is liable for the safety of those who visit the premises. If injury results from a foreseeable risk which has occurred because of lack of safety, the occupier will end up having to pay damages to the injured party.


The law of negligence in common law and in the OLA provides additional protection from the acts or omissions of those who should be taking care of others. Negligence arises where there is a breach of the duty of care in preventing a foreseeable risk. Where, in the course of his work, an employee causes injury to a fellow employee or visitor to the workplace, the employer will generally be vicariously liable for that wrongdoing. Professional negligence is a breach of the standards of the profession.


Prevention v cure


The criminal and civil law rely on the concept of assessing the probability of risk as required by Regulation 3 of the Management of Health and Safety at Work Regulations 1999 (MHSWR): “…for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions.”


An HSE inspector will enter an employer’s premises when either an incident has occurred or someone has blown the whistle on a potential risk. And it is not always about unguarded machinery, pots of boiling oil about to spill, staircases with missing treads – to mention but a few of the accidents waiting to happen.


But let us return to stress which, although not an illness, can be a causative factor. Because there had been no Regulation 3 risk assessment, the HSE issued an Improvement Notice to Dorset General Hospital in 2003 after an employee complained about the high stress levels at work.


The Dundee notice was on similar grounds, but it also raised the issue of compliance with arrangements to manage health and safety effectively (covered by Regulation 5). This was translated into a positive suggestion that a dedicated OH department or external provider would be an appropriate method of raising OH awareness and improving psychological health.


Indeed, Regulation 6 provides for “such health surveillance as is appropriate”. Thus, Dundee City Council had to go about the business of making risk assessments and providing access to adequate OH services so as to take steps to reduce stress factors.


On the specific facts of the case, the council had a problem with stressors, but had the resources to use greater input from OH services. This does not mean that it is generally mandatory to provide OH services, nor does it change the way the law is worded in relation to risk assessments. But the Dundee notice has raised awareness of the preventive aspects of OH.


Duty of care


Where OH personnel are used to implement health and safety regulations, their duty of care is to the company instructing them to do the work. Departures from the appropriate standards could result in litigation against them personally and, if sufficiently serious, professional disciplinary proceedings could follow.


The criminal law is also there to deal with the aberrant professional. Section 36 of the Health and Safety at Work Act permits the prosecution of an individual who has actually committed a wrongful act regardless of whether the principal employer is prosecuted. Although there do not appear to be any prosecutions to date for inept risk assessments, adequacy is often a feature of civil claims where negligence is alleged.


Taking it seriously


Professional status carries heavy responsibilities. A slip from standards can result in heavy loss to members of the public affected by the error or omission. It is too easy to maintain the traditional position that OH practitioners are one step removed from the therapeutic relationship, and the duty of care is only to the employer who buys the service for the benefit of the rest of the staff.


Getting it wrong can lead to civil or criminal action, internal disciplinary proceedings with risk of dismissal and, for nurses and physicians, the ultimate professional misfortune: disciplinary proceedings by the regulatory body.


OH practitioners have to uphold the standards of their branch of the profession, but may be called upon to raise the standards in the industries where they ply their skills. They have the skill, experience and willingness to undertake risk assessments. This effects compliance with the criminal law, which underpins the common law duty on employers to evaluate and, where necessary, take steps to reduce risk. This is part and parcel of the duty to maintain a safe place and safe system of work.


Linda Goldman is a barrister at 7 New Square, Lincoln’s Inn, and Joan Lewis is an independent employment law consultant, licensed by the General Council of the Bar under BarDirect.


Any enquiry about this article may be made to Joan Lewis at joanlewis25a@aol.com, telephone 020 8943 0393


Casebook


Walker v Northumberland County Council [1995] IRLR 35


This case shows what happens when stress is not risk-assessed. Walker, a social worker, suffered two breakdowns because of work-related stress. The first instance was held by the court not to have been reasonably foreseeable, but the council should have been particularly aware of the claimant’s susceptibility to a severe stress reaction when he came back to work after the first breakdown and should have taken reasonable steps to ensure his health and safety. It did not and, predictably, he became ill again.


Baker v Kaye [1997] IRLR 219


This is what happens when someone blames the person performing the employment medical for not getting a job. An independent occupational health physician did not owe a duty of care to a television executive when he reported that he was medically unfit for the job for which he had applied and been accepted for subject to passing a pre-employment medical. An ethical point arose: the reason for the report was adverse results on blood alcohol content, but that was not made known to the prospective employer.


Kapfunde v Abbey National plc and Daniel [1998] IRLR 583 CA


And this is what happened when another claim was made in negligence against an OH doctor after assessment of a medical questionnaire. Here, the court held that Dr Daniel was self-employed and provided services as an independent contractor to Abbey National which could not therefore be liable for any negligence on the part of the doctor. However, Dr Daniel was not negligent in any event, having exercised the skill and care to be expected of an OH physician. She assessed a questionnaire properly which showed Kapfunde suffered from a condition which would result in poor attendance at work during acute exacerbation phases. The assessment of the questionnaire did not create a patient-doctor relationship.


Dundee City Council’s Improvement Notice (2006)


Although the council was reported to have breached the MHSWR because of the lack of an in-house occupational health service, other cases will turn on their own facts. If the council had carried out a risk assessment before the inspector’s attendance, it might have realised that an OH service could have assisted with reducing the risk of psychological injury and decreasing absenteeism. According to the HSE website (www.hse.gov.uk), local authorities across Scotland can be in no doubt about their duty to provide health monitoring and provision for their staff on an ongoing basis. It is then a matter for the employer to decide how best to deal with those requirements. The HSE’s 2007 booklet, Managing the Causes of Work-Related Stress, sets out a common sense approach to proactivity in reducing stress-related absence, but the law does not demand reliance on the occupational health profession.

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