It is essential that employers adopt robust and legally compliant health surveillance programmes to protect their staff. Jenny Mason explains.
Delivering a health surveillance programme to workers exposed to workplace hazards, and to those at risk of developing occupationally induced diseases and conditions, is a fundamental and integral part of any OH service. Employers do not always recognise the legal requirements of their duty of care under s.2 of the Health and Safety at Work etc Act (1974), namely that employees have the right to believe that attending work will not be harmful to them and that the employer is able to ensure (at a mutually agreed level) that their health is protected while they are at work.
The legislation is clear and directs the employer to its responsibility in making suitable and sufficient risk assessments of any health and safety hazards of which their employees could be exposed to while they are at work (Management of Health and Safety at Work Regulations 1999: reg.3).
When the risk assessment identifies that a hazardous substance cannot be eliminated or a hazardous task cannot be performed in an alternative manner that would prevent the risk of injury or an occupationally induced disease or disorder, employees are often protected through the provision of personal protective equipment (PPE), although in the hierarchy of control measures this should be the last resort (Health and Safety Executive guidance, L25).
Regulation 4 of the Personal Protective Equipment Regulations (2002) states that every employer shall ensure that suitable PPE is provided to its employees who may be exposed to a risk to their health or safety while at work, except where such risk has been adequately controlled by other means that are equally or more effective.
PPE acts as a barrier to exposure, but should never be considered as providing complete protection, as many influencing factors must be considered. Employers can control the effectiveness of PPE by complying with instructions about its use, putting control measures in place and selecting the best quality and type of PPE.
The only reliable method for establishing whether or not health is being affected by the hazard is by monitoring and assessing the employees exposed to such hazards through adequate and appropriate health surveillance programmes.
When to start a surveillance programme
Section 6 of the Management of Health and Safety at Work Regulations (1999) states that health surveillance should be introduced when a risk assessment has indicated that there is a requirement or that it meets the criteria as listed in the Health and Safety Executive’s (HSE) approved code of practice associated with the risk.
On its website, the HSE defines health surveillance as: “A system of ongoing health checks. These health checks may be required by law for employees who are exposed to noise or vibration, ionising radiation, solvents, fumes, dusts, biological agents and other substances hazardous to health, or work in compressed air.”
It goes on to say that health surveillance is important for:
- detecting ill-health effects at an early stage, so employers can introduce better controls to prevent them getting worse;
- providing data to help employers evaluate health risks;
- enabling employees to raise concerns about how work affects their health;
- highlighting lapses in workplace control measures, therefore providing invaluable feedback to the risk assessment; and
- providing an opportunity to reinforce training and education of employees – for example, on the potential effects on their health and the use of protective equipment.
When a risk assessment indicates that employees’ health could be affected following exposure to a workplace hazard, health surveillance programmes are able to detect clinical signs of occupationally induced diseases, allow early diagnosis and prevent further ill-health effects from developing.
It is essential that employers have a robust health surveillance policy, which has been agreed with employees. It should state clearly why the surveillance is required, what action will be considered in the event of the employee being unable to continue working with a specific hazard – for example, redeployment within the company to an alternative area of work – and the consequences of non-compliance with the policy.
If an employee refuses to take part in a health surveillance programme, the employer must explore their rationale for the decision and attempt to persuade them to reconsider their actions. If an employee continues to refuse the required assessments, the employer should exclude them from further hazard exposure.
Risk of negligence
OH professionals should assume responsibility for delivering health surveillance programmes as they can conduct the assessment process, interpret the results, offer advice on continued safe working practice and, when necessary, refer directly to the appropriate clinical specialist.
The HSE code of practice for the Management of health and safety at work (reg.6) states that health surveillance should be determined by a competent person acting within the limits of their training and experience, although this does not necessarily need to be an OH professional.
In March 2012, a health screening company was prosecuted by the HSE because it used unqualified staff to carry out assessments on employees.
The company – which provided workplace health assessments to 59 employers – pleaded guilty to breaching s.3(1) of the Health and Safety at Work etc Act and had fines imposed on it for failing to:
- perform adequate testing for employees exposed to handheld vibrating power tools;
- provide the employee with information that would prevent further deterioration of their health; and
- refer employees to an OH service for further medical investigations and a definitive diagnosis.
The court concluded that a subsequent investigation by the HSE had identified that numerous employees across the various industries were demonstrating symptoms of hand-arm vibration syndrome (HAVS). Therefore, the company’s negligent behaviour meant that a significant number of workers had been put at risk of worsening their conditions by continuing with their normal work practices when they should have been advised to stop.
This case also breached the Control of Vibration at Work Regulations 2005.
Conducting programmes correctly
It is essential that the health surveillance process be conducted in the correct manner to ensure that the results provided to both the employer and employees are legally defensible. Trained clinicians rely on using suitably appropriate equipment that is maintained and regularly calibrated to the manufacturer’s recommendations. Poorly maintained equipment could result in inaccuracies in the interpretation of the test results and could be legally indefensible if challenged in court.
A recent study found that health surveillance targeted at particular OH hazards was the least common provision for workers (Paton, 2013). Health and safety legislation often uses the term “should” as opposed to “must”. This may imply to employers that they have a choice, rather than a mandatory requirement to monitor health. However, if the risk assessment identifies that a health risk is present and that the only protective measure is to provide PPE, then failure to monitor employee health could ultimately result in a claim for negligence.
In the absence of health surveillance, there would be no way to determine whether or not ill health had occurred.
If an occupationally induced condition is later confirmed by a diagnosis, the employer may have failed in its duty of care to protect its workforce and could face the risk of legal action through both the criminal and civil courts.
High potential costs to employers
In May 2011, Millbrook Furnishing Industries of Southampton pleaded guilty to breaching s.2(1) of the Health and Safety at Work etc Act 1974. It was fined £27,000 and ordered to pay costs of £25,000.
An employee exposed to wood dust and isocyanate-based glue developed breathing difficulties that resulted in anaphylactic shock and emergency hospital treatment. The court ruled that the employer had failed to identify materials likely to cause allergic reactions and had provided no health surveillance in order to monitor and assess the employee’s health.
There is a high risk of death from extreme allergenic reactions resulting in anaphylaxis without prompt medical intervention and treatment.
HSE inspectors also found that local exhaust ventilation was inadequate to control exposure to the harmful wood dust and glue vapours; and that although protective facemasks were provided on the site they were not always worn. Training and information was also significantly lacking, according to the HSE inspectors.
Apart from fines and court expenses, there are other potential hidden costs for employers: damage to the company’s reputation and the loss of productivity following any prohibition notices enforced by the HSE can be significant.
A major vehicle manufacturing company was prosecuted by the HSE in 2011 under s.2(1) of the Health and Safety at Work etc Act for failing to take into account the risks associated with workers that were using handheld vibrating power tools at its manufacturing plant.
The HSE investigated two confirmed cases of HAVS, and further cases were later found when a health surveillance programme was introduced. The court heard that there was no system in place to measure how much time each employee had spent using the tools or the levels of vibration emitted (HSE, 2011).
When to conduct an assessment
The frequency of health surveillance monitoring is determined by the risk assessment, as this identifies the degree of exposure levels. Health surveillance conducted at the commencement of employment or exposure to the hazard is sensible.
This allows a baseline to be established and identifies any personal contributing factors that could increase an employee’s risk of developing any conditions.
Consideration of lifestyle activities and any pre-existing health conditions should be explored. When the assessment identifies that an employee has an increased risk of the condition developing, the employer should consider increasing the frequency of health assessments.
A standardised method of delivering health surveillance is essential, allows a consistent approach and reduces the risk of subjectivity when interpreting the results. Clinicians delivering this service should have appropriate training and ensure that the methodology used in the assessment process is consistent throughout.
Identified changes in an employee’s health should be investigated further, and when a definitive diagnosis is needed then more specialist advice should be sought.
Testing and reporting
It is often necessary to conduct skin-prick testing for respiratory sensitising agents to identify an allergenic response, or thermal and vibrotactile perception threshold tests to confirm the presence of HAVS – particularly if subsequent legal action is possible (Ormiston, 2013).
Biological monitoring is a method often adopted in measuring the level of exposure an employee may have been subjected to, and should always be analysed by laboratories with recognised quality assurances (Smedley et al, 2013).
Although it can be a useful tool in supporting the health surveillance programmes by demonstrating the effectiveness of the provided protection, it should not be undertaken lightly – it is invasive and consideration should be given to the ethical issues involved (Westerhold et al, 2004).
Whenever possible, it may be sensible to conduct a health surveillance assessment when an employee is leaving the company. This is of particular importance when noise-induced hearing loss monitoring programmes have been implemented.
If an employee has demonstrated that their level of hearing was at a recorded level upon leaving the business, it would be difficult to imply blame later if they were to subsequently develop noise-induced hearing loss.
In practical terms, it is often difficult to ensure that the employee attends such an assessment, so the requirement to do so should be included in the employer’s health surveillance policy. The employee must provide informed consent to attend the assessment and to allow the report to be released to managers.
Reports issued to managers should only include the recommendations that an employee either remains medically able to continue working with the identified exposure(s) or must work with restrictions. Confidential medical information should not be included within the report and, when there is a need to provide managers with more detailed information, it must be with the employee’s full consent.
Information recorded in an employee’s electronic or paper health surveillance records must comply with the Data Protection Act 2005, and nurses must comply with the Nursing and Midwifery Council guidance on record keeping.
In some instances, there is a legal requirement to keep health surveillance records for 40 years from the date of the last entry. Records are retained for this length of time as certain medical conditions can evolve many years after the exposure to the substance. For example, an employee subjected to asbestos exposure may not develop progressive symptoms of the disease until later life, and claims for personal injuries and damages may consequently be instigated many years after the initial exposure.
Further information regarding record keeping can also be found by visiting the Royal College of Nursing website , the Association of Occupational Health Nurse Practitioners website and in Employment Law and Heath: A Practical Handbook.
Advice and guidance on applying the law to clinical practice when providing health surveillance programmes is available for OH clinicians, HR professionals and line managers at an interactive one-day workshop called “Applying the Law to Workplace Health,” which will be delivered by a barrister at law and an OH practitioner. For further information on the workshop, email Burrows Law.
Health and Safety Executive (2012). Health screening company failed its duty to workers.
Paton N (2013). “One in four has no OH access”. Occupational Health; vol.65, no.9, September 2013, p.4.
Health and Safety Executive (2011). “Firm fined for failing control wood-dust risk”. Release Number: COISE/1705.
Health and Safety Executive. (2011). “Landrover fined for failing to assess risk”. Release Number: WM420/1.
Ormiston B (2013). “Dealing with bad vibrations”. Occupational Health; vol.65, no.2, pp27-29.
Smedley J et al (2013). Health Surveillance: General Principles, Oxford Handbook of Occupational Health. Oxford University Press.
Nursing and Midwifery Council (2009). “Record keeping: Guidance for nurses and midwives”.
Thornbory G, Lewis J (2010). Employment Law and Occupational Health: A Practical Handbook. Oxford: Wiley Blackwell.
Westerholm P, Nistun T, Ovretveit J (2004). Practical Ethics in Occupational Health. Oxford: Radcliffe Medical Press.