Employment Law and Occupational Health: A Practical Handbook, Second Edition

237 Pages·2010·2.802 MB·English

by  Joan Lewis, Greta Thornbory TD(auth.)

EMPLOYMENT LAW AND
OCCUPATIONAL HEALTH
Employment Law and Occupational Health: A Practical Handbook, Second Edition Joan Lewis and Greta Thornbory
© 2010 Joan Lewis and Greta Thornbory. ISBN: 978-1-405-19783-0
To David for happy days
and
Linda, Bernie, Mary, Nicky, Kate
Sheena, ‘Dele, Debbie
Joan
To Carla, Daniel, Ellis & Seth, our future workers
Greta
EMPLOYMENT LAW AND
OCCUPATIONAL HEALTH:
A Practical Handbook
SECOND EDITION
Joan Lewis
MCIPD, Dip Law, MA (Law & Employment Relations)
Greta Thornbory TD
MSc (OH), RGN, SCPHN (OH), DipN OH, PGCEA, CMIOSH
This edition fi rst published 2010.
© 2010 by Joan Lewis and Greta Thornbory
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Library of Congress Cataloging-in-Publication Data
Lewis, Joan, MCIPD.
Employment law and occupational health : a practical handbook / Joan Lewis, Greta
Thornbory. — 2nd ed.
p. ; cm.
Includes bibliographical references and index.
ISBN 978-1-4051-9783-0 (pbk. : alk. paper) 1. Industrial hygiene—Law and
legislation—England. 2. Industrial safety—Law and legislation—England.
3. Labor laws and legislation—England. I. Thornbory, Greta.
II. Title. [DNLM: 1. Employment—legislation & jurisprudence—Great
Britain. 2. Occupational Health—legislation & jurisprudence—Great Britain.
WA 33 FA1 L674e 2010]
KD3168.L49 2010
344.4204’65–dc22
2009042945
A catalogue record for this book is available from the British Library.
Set in Palatino 10/12.5 pt by MPS Limited, A Macmillan Company, Chennai, India
Printed in Malaysia
1 2010
Contents
Preface ix
Acknowledgements x
Abbreviations xi
Table of Cases xiii
Table of Statutes xvii
Table of Statutory Instruments xix
Other Legal References xxii
Forewords xxiii
Introduction 1
1. Recruitment and Pre-employment Health Assessment 4
Employment law perspectives 5
Preparing to recruit 6
Job descriptions 7
Advertising 8
Applications 10
Selection 13
Offers of employment 14
Occupational health perspectives 17
What is occupational health? 17
Health assessment 18
Assessing the risks 20
Methods of pre-employment health assessment 25
Summary 31
References 31
2. Records and Reports 33
Employment law perspectives 34
The Data Protection Act 1998 34
Health records and confi dentiality 40
Medical reports 41
The Public Interest Disclosure Act 1998 44
The Human Rights Act 1998 47
Occupational health perspectives 48
The duty of confi dentiality 48
Clinical audit 50
Writing reports 52
Summary 53
References 54
vi Contents
3. Health and Safety at Work 55
Employment law perspectives 55
The common law 55
The Employers’ Liability (Compulsory Insurance) Act 1969 55
The Health and Safety at Work Act 1974 56
Key regulations summary 57
Risk and hazard controls 59
Fire safety 59
Risk assessments 60
Health surveillance 61
Health and safety policy 63
Accident and incident reporting 65
First aid 66
Prosecution for health and safety offences 67
Legal redress: civil cases 71
Occupational health perspectives 74
Co-operation and communication 76
The effects of work on health 77
Occupational health and health surveillance 78
Health surveillance for physical hazards 79
Occupational health action 83
Working with hazardous substances 84
Business travel and health surveillance 89
Summary 91
References 92
4. Occupational Health Services 93
Employment law perspectives 93
Discrimination and unfair employment practices 94
Travelling abroad 95
Stress, bullying and harassment 99
Elements of causation of stress-related illness 101
Vicarious liability 102
Working Time Regulations 106
Drugs and alcohol 109
Family friendly working 113
Working from home 116
Cars and health 118
Occupational health perspectives 118
The role and function of occupational health services 119
Moral and ethical aspects of occupational health 120
The development of occupational health related law 120
Financial issues 121
Functions of an occupational health service 122
Occupational health professionals 124
Contents vii
Types of occupational health services 127
What do occupational health services offer? 128
Summary 131
References 131
5. Managing Absence and Rehabilitation 133
Employment law perspectives 134
Managing sickness and absence 134
Achieving improved attendance 136
Sickness during disciplinary and other internal proceedings 137
Frequent short-term absence 138
Longer term, ill-health absence 140
Disability discrimination 141
Absence management policy 147
Rehabilitation 150
Sick pay and medical evidence 151
Medical suspension 154
Musculoskeletal disorders 155
Stress-related illness 157
Occupational health perspectives 160
Musculoskeletal disorders 162
Stress-related illness 163
Principles of rehabilitation and case management 165
Pandemics 167
Summary 167
References 168
6. Termination of Employment 170
Employment law perspectives 170
Procedural standards 170
Dismissal 171
Persistent absence problems 173
Capability dismissal 173
Retirement 174
Age-related retirement 175
Redundancy 175
General 176
Medical and occupational health advice 177
Employment tribunals 179
The expert witness 181
Alternative dispute resolution 181
Occupational health perspectives 182
Retirement advice 183
Disability analysis 184
Support from occupational health 185
viii Contents
Summary 185
References 185
Appendix 1 Occupational Health Service Confi dentiality Policy 186
Appendix 2 COSHH Health Surveillance Registration Form 187
Appendix 3 Management Referral Letter/Form 188
Appendix 4 Letter to Employee Requesting Attendance at
Occupational Health 191
Appendix 5 Letter from Occupational Health to GP or Specialist 192
Appendix 6 Employee Consent to Disclosure 193
Appendix 7 Occupational Health Report Form to Management 194
Appendix 8 Medical Report Consent Form 195
Appendix 9 Risk Assessment Example Template: for Guidance on
Evaluating Level of Risk 197
Appendix 10 Sample Protocol Outline: Data Protection 202
Glossary 207
Index 209
Preface
Throughout the book where the terms ‘he’, ‘his’, ‘him’ are used, these should
be taken to refer to both genders.
This book provides general guidance only and must not be regarded as pro-
viding formal legal advice or opinion.
We have included the current legal framework in 2009, with proposed and
some relevant legislative changes expected during 2010, in our guidance and
references. We suggest that, given the pace of change in the development of
employment law, the current position should always be checked. We have
provided website sources to assist in this aspect of ongoing professional
development.
Acknowledgements
We are proud and humbled to have been given the chance to write this second
edition of our handbook. It has been a great pleasure for us to work together
on a project once again and still to be enjoying each other’s company when the
manuscript was completed!
We are both indebted to so many people for their help, encouragement
and support in writing this second edition. Above all, of course, we thank our
friends and family.
It is not possible to name each person who has advised and encouraged us
in the content of the book on an individual basis but we do take this oppor-
tunity to express our gratitude to everyone who has helped us. In particular
we would like to thank Key People and Kay’s Medical for their support of our
book promotion and related training workshops.
There are some whose names should be mentioned in acknowledgement of
their contribution to our work and research:
Professor Michael Bagshaw; Dr Tony Mitchell; Dr Les Smith and Mark
Holt-Rogers of WellBeing4Business; Robert Dunn, University of Oxford
Occupational Health Service; Anne Harriss; Jo Jenkins; Chris Packham,
Enviroderm; Dr Stuart Whitaker; Elizabeth Wilson; Melanie Wyatt, Well Aware
Occupational Health Service; and Claire White. There are others who have
given their help and wish to remain anonymous.
We would like to thank Katrina Hulme-Cross, Emily Jefferson, Alison Nick,
Beth Knight, and the late Richard Miles of Wiley-Blackwell. Their guidance,
encouragement and professional support has been invaluable to us both.
Our legal editors are once again Barristers Linda Goldman and Laura
Robinson. We are immensely grateful for their support and advice.