Occupational Health Standards.
Employer’s Guide to Regulation, Ethics and Best Practice
1. Occupational Health Standards. Your Legal Obligations.
As an employer you are legally required to have a record of:
- Knowing. That you have identified an employee health condition affecting their performance or a risk to their health when you could reasonably have been expected to do so.
- Assessing. That your employee’s health condition or risk has been assessed by an appropriately trained person.
- Controlling. That you have taken all reasonably practical steps to adjust for any health conditions or to control for any risks.
- Monitoring. That you are monitoring for any change in the health condition or health risk and for the adequacy of controls.
These requirements apply whenever your employee is on company business; whether they are on site, homeworking or travelling. They originate from; your ‘common law’ duty of care, implied terms in employment contracts and regulation.
1.1. The main regulations affecting occupational health standards.
The principal piece of legislation for occupational health and safety in Great Britain. Places a duty on employers to ensure, as far as is reasonably practicable, the physical and mental health, safety and welfare of anyone likely to be affected by your organisation’s activities, including employees, contractors, customers and the general public by:
- Conducting health risk assessments and as far as is reasonably practical, implementing controls for identified risks.
- Providing a safe working environment that is properly maintained and where operations within it are conducted safely.
- Providing adequate training of staff to ensure health and safety procedures are understood and adhered to.
- Providing adequate welfare provisions for staff at work.
- Providing relevant information, instruction and supervision.
Gives Health and Safety Executive (HSE) or local authority inspectors extensive investigative powers and the authority to:
- Serve enforcement notices in the form of prohibition and improvement notices; and
- Bring prosecutions for health and safety offences.
For employees using DSE daily and / or continuously for an hour or more (regardless of who provided the DSE) you must:
- Provide; DSE, a working environment and a computer interface which meets minimum defined standards1.
- Provide adequate health and safety training in the use of the DSE and whenever the DSE is substantially modified.
- Have adequate procedures, including DSE Assessments, to identify health and safety risks and reduce them to the lowest extent reasonably practicable.
- Plan your employee’s work activity to ensure they take adequate breaks or changes of activity.
- Fund an eyesight test if requested or whenever visual difficulties are being caused by DSE work and provide corrective equipment where required specifically for DSE work.
Provides more definition around the duty to carry out risk assessments originally introduced in the Health and Safety at Work etc Act 1974.
- You must appoint a suitably competent person to identify physical and mental health and safety risks, assess the significance of the risks (likelihood of occurrence x impact should they occur) and take reasonable precautions to control them.
- You must complete a general risk assessment at an aggregate; company, site, team or job description level.
- Where the general risk assessment fails to adequately control risks for a particular employee, you will be expected to conduct an individual employee risk assessment as well. Typical scenarios would require a:
- New & Expectant Mother Risk Assessment when your employee informs you of their pregnancy with complications or other health conditions 2. Consequent to a 2017 judgement by the Court of Justice of the European Union, UK legal advice is that individual risk assessments are completed for all new and expectant mothers and furthermore, because pregnancies are not static conditions, the risk assessment should be reviewed if risks change3.
- DSE-Workstation Assessment, e.g., when your employee complains of discomfort or pain.
- Stress Risk Assessment when you have reason to believe that your employee is struggling with work related stress.
The Act applies if you are an employer in Great Britain and has two main effects as it relates to the health of your employees:
- In order to minimise any opportunity to discriminate against disabled job applicants, you are forbidden from requesting information about their health or sickness absence history until a job offer is made (scroll down to the section on “Pre-Placement Health Screening” for further information).
- You must make reasonable adjustments where you know, or ought reasonably to know, that an employee has a long-term health condition which substantially affects their ability to perform in their role. Employment Tribunals are constantly shaping the application of the Equality Act and define:
- Reasonable adjustments to include an ever widening range of adjustments (scroll down to the section on “What Adjustments are Reasonable?” for further information).
- Ought reasonably to know as something less formal than a GP fit note. Having processes to obtain information about an employee’s health condition, such as health declaration forms, is insufficient if you do not also have an organisational ability to identify and act upon clues from your employee’s behaviour, their attendance, or disclosures to line managers4.
- Substantial as any condition which currently affects your employee’s ability to do their job or which might do so in the future. As one lawyer comments: “…tribunal judges have set the bar lower than the word ‘substantial’ might imply”. For example; an employee leading a healthy lifestyle and feeling no effects from their mild Type 2 diabetes is defined as disabled because there is a theoretical (but not inevitable) risk that Type 2 diabetes can progress to Type 1 diabetes at some point in the future5.
Because of the application of the Equality Act, legal advisers recommend that employers:
- Are diligent in assessing adjustments for any employee health condition.
- Only withdraw conditional employment offers or dismiss on grounds of health as a very last resort.
The Information Commissioner’s Office provide employer guidance on processing employee health information which can be summarised into 5 key points as follows6:
- You must have a strong and convincing legal basis for processing health information.
- You should rely upon self-declaration rather than medical examinations wherever possible.
- Employee health information should be processed by a health professional who will interpret the information and make recommendations to you.
- Your occupational health practitioner must ensure that employee health information is only disclosed to those with the correct permissions or legal right to see it.
- The ICO provide some guidelines for when you do have to process employee health information yourself.
Scroll down to the section on “Processing Employee Health Information” for more detail on these key points.
Occupational health standards for data protection are re-enforced by the following regulations:
- Access to Medical Reports Act 1988.
- Access to Health Records Act 1990.
- Information Government Alliance. Records Management Code of Practice for Health and Social Care 2016.
1.2. How to meet occupational health standards.
Employment tribunals are the final arbiter of whether you have taken all reasonably practicable steps to meet occupational health standards. Tribunals appear to award against employers for two reasons:
- Often, employers failed to follow their own policies and procedures designed to identify health conditions when they would be reasonably expected to do so and to make adjustments when health conditions are identified. Bringing in an experienced occupational health specialist practitioner to supplement the often limited availability and sometimes conflicted intentions of line managers and HR when managing a case of employee ill health can help ensure that company policies are more than complied with.
- Less often, the employers’ own policies and procedures are inadequate. For example, signposting a struggling employee to your employment assistance programme (EAP) rather than referring them to occupational health fails the reasonable standard because the EAP provider will not; assess health risks, recommend adjustments or ensure that the employee’s health at work is subsequently monitored and managed.
2. Occupational Health Standards. Data Protection.
The Data Protection Act and the Information Commissioner’s Office definition of occupational health standards can be summarised into five key points. Italicised text are verbatims taken from the ICO’s guidance to employers regarding “information about workers’ health”6:
Employers should bear in mind that health information can be particularly sensitive, that its obtaining can be particularly intrusive and that significant intrusion will not normally be justified unless the employer’s business is at real risk of serious damage.
In practice, before processing employee health information, you should have one or more of the following:
- Evidence that the information has been manifestly made public by your employee.
- A court order to process the information for the establishment, exercise or defence of legal claims.
- Employee consent. To be valid:
- Consent must be Explicit. meaning the worker must have been told clearly what personal data are involved and have been properly informed about the use that will be made of them.
- The worker must have given a positive indication of agreement, e.g. a signature.
- Consent must be Freely given meaning the worker must have a real choice whether or not to consent and there must be no penalty imposed for refusing to give consent.
The Royal College of Physicians Ethics Guidance for Occupational Health Practice7 includes the overriding principle of ‘no surprises’ achieved by a continuous process of gaining the employee’s ‘express consent’ to:
- The contents of the management referral form before the referring manager sends it to the Occupational Health Practitioner.
- The contents of the assessment report before the Occupational Health Practitioner releases it to the referring manager.
- The Occupational Health Practitioner requesting a GP or treating specialist report.
- The content of the GP or treating specialist report prior to its release to the Occupational Health Practitioner.
Relying on consent is not enough because of an imbalance of power between yourself and your employee, so authorities including the ICO require that you should also have at least one other lawful basis8 including:
- To determine the worker’s entitlement to health related benefits, e.g., sick pay, permanent health insurance.
- To determine a particular worker’s fitness for carrying out his or her job.
- To comply with your legal obligation to control for health and safety risks to your employee or risks that the employee may pose to colleagues, customers and the public.
- To comply with your legal obligation not to discriminate against workers.
- Employers should ensure that the intrusion is no more than absolutely necessary and consider alternatives to minimise intrusion, e.g., can health questionnaires rather than tests be used?
- Review any health questionnaires to ensure that only information that is really needed is collected.
- Can access to health information be limited so that it will only be seen by medically qualified staff?
- Is the processing for medical purposes, e.g. the provision of care or treatment, and undertaken by a health professional or someone working under an equivalent duty of confidentiality?
- Ensure that wherever practicable only suitably qualified health professionals have access to medical details.
An occupational health practitioner should interpret the information and make recommendations to you:
- Decisions on a worker’s suitability for particular work are properly management decisions but the interpretation of medical information should be left to a suitably qualified health professional. Leave the interpretation of medical information to those who are qualified to do this.
- Employers should seek information on the worker’s fitness for continued employment rather than medical details.
- A medical report should contain only the information required for the employer to fulfil their legal responsibilities. If the employee has any health condition, the employer may only need to know:
- Whether it constitutes a disability.
- Will it impact the ability to perform a defined role.
- If reasonable adjustments at work need to be made9.
In practice, the occupational health practitioner will describe confidential employee health information in terms of functional effects, e.g., levels of; mobility, dexterity, vision, hearing, speech, continence, concentration, memory, learning and understanding. For example;
- “Severe depression and anxiety” may be described as: “your employee’s condition results in a significant reduction in mental and physical stamina and the ability to concentrate on problem solving and physical tasks.”
- “Sciatica” or “Arthritis” may be described as: “your employee’s condition limits mobility and ability to sit for periods of more than 30 minutes. Any work carried out in a bent or awkward posture or lifting moderately heavy loads should be avoided. Your employee should also be given the opportunity to move and stretch every 30 minutes”.
Point 4: Your occupational health practitioner must maintain the confidentiality of your employee's health information.
Occupational health practitioners should follow General Medical Council best practice guidance to give your employee the opportunity to check through reports before they are released to you and request the:
- Deletion of confidential information which they do not wish to disclose to you.
- Correction of factually inaccurate information.
The ICO expect you to respect the confidentiality of information processed by occupational health:
- If workers are allowed to use telephone or e-mail for confidential communication with their occupational health service, do not compromise this confidentiality by monitoring the contents of these communications.
- If the retention of medical information is necessary only for the operation of an occupational health service, it should be kept in a confidential occupational health file.
The General Medical Council, Royal College of Nursing and Nursing and Midwifery Council agree on exceptional situations where occupational health practitioners should not maintain confidentiality, including:
- Where the occupational health practitioner deems it unequivocally in the public interest, to protect the safety of others (e.g., a truck driver is epileptic or driving under the influence of drugs or alcohol, an employee is carrying a transmittable disease or has a mental health condition such that they may become violent).
- Where the occupational health practitioner deems it clearly in the patient’s interest, to ensure their safety from themselves or others (e.g., high risk of suicide, victim of abuse).
- Where instructed by law or a court order.
- To safeguard national security or to prevent a serious crime.
In such instances health professionals will still only disclose the minimum necessary information.
The means of complying with data protection regulations and guidelines are complex. Occupational health practitioners should be masters of this complexity and operate processes which are compliant without being overly restrictive and cumbersome. In this way, an occupational health practitioner can help you minimise the cost of compliance.
For further information about maintaining confidentiality and other aspects of data privacy, here’s a link to our Privacy Statement. You can also find a link to this document in the footer of this page.
- If commissioning a medical report on a sick employee:
- Health information that is excessive, irrelevant or out of date should not be retained by an employer. If the GP gives you more than you need you are obligated to delete what you don’t need.
- Patients are in control of any information released to an employer, and they have the right to review and ask for changes before it is submitted to an employer, including the withdrawal of consent.
- Unless the general standard of information security in your organisation is sufficiently high, medical information about workers should be separated from other personnel information, for example by keeping it in a sealed envelope, or subject to additional access controls on an electronic system.
Despite the ICO conceding that you may request health information about your employee directly from GPs and treating specialists the Royal College of Physicians Ethics Guidance states that you should be discouraged from doing so because of the risks, stated by the ICO in Point 3 above, that you may not be qualified to reliably interpret the information.
3. Occupational Health Standards. Occupational Health Assessments.
The Royal College of Physicians define occupational health standards in the UK7. These occupational health standards incorporate all applicable legal and medical practice requirements and make the occupational health assessment process largely standardised and repeatable. However:
- The process does need to be learned. For the first one or two referrals it can feel unfamiliar, even over-engineered but it is necessary to meet occupational health standards.
- Many aspects of the process, such as the content and format of the referral form and the technologies used to access it, can vary widely from one occupational health provider to another.
The amount of investment required by the referring manager to learn a particular process can be significantly reduced by occupational health providers who:
- Invest in familiarising themselves with the referring manager’s prior level of knowledge, learning and working styles and adapting accordingly.
- Make their practitioners available to familiarise the referring manager with their process and make time to discuss the application of the process to new and complex cases.
- Reflect on how each case progressed and use lessons learned to streamline, refine and improve their process for next time.
- Use technologies with which the referring manager is already likely to be familiar.
Having mastered the referral process, employers and occupational health practitioners can still have questions about occupational health standards. Here are the questions shared most frequently by occupational health practitioners during social media discussion:
Question 1. "I’ve received a referral form which does not ask any questions. I followed up with the referring manager who advised that the line manager has not met with their employee to discuss whether a health condition might be affecting performance."
At best, the practitioner has an incomplete brief to satisfy. At worst, the employee provided consent without knowing the purpose for which their health information will be processed. A breach of the Data Protection Act.
Occupational health standard. The occupational health practitioner should return the referral form to the referring manager and request that they specify the questions to which they require answers.
Question 2. "The referring manager told me 'off the record' that their employee's behaviour is erratic and asked me let them know if I smell alcohol / cannabis."
The employer has disclosed personal information and asked a question outside of the referral form, i.e., without obtaining the employee’s consent. A breach of the Data Protection Act.
Occupational health standard. The occupational health practitioner should ask the referring manager to add the information to the referral form and obtain their employee’s consent again prior to re-supplying the referral form. Otherwise they must decline to answer the question. Of course, the employee may confide this information during the assessment, in which case it can usefully inform the assessment and be included in the assessment report subject to the employee’s consent.
Question 3. "I’ve received a referral form which includes a question asking for proof of the employee’s health condition(s) and their treatment (or details about the employee’s lifestyle)."
Occupational Health Standard. The employee has consented to this question being asked, so the occupational health practitioner can seek and disclose this information to the extent that it is relevant to the employee’s health condition, its impact upon their performance at work, and any recommended adjustments.
As best practice, the Practitioner should also offer the employee the option of having advance sight of the assessment report and the opportunity to request the deletion of confidential information before consenting to the release of the report.
Question 4. "I’ve received a referral form including a question which appears to ask for an assessment of the employee’s competencies, skills and experience."
The occupational health practitioner cannot assess the employee’s competencies, skills and experience, this is the responsibility of the manager.
Occupational health standard. The occupational health practitioner should assess the employee’s health and fitness for work and report this assessment and any recommendations for adjustments back to the manager.
Question 5. "I’ve received a referral where a pattern of sickness absence appears to have been allowed to escalate for over a year without being addressed. I followed up with the referring manager who left me in no doubt that they want me to recommend dismissal."
The occupational health practitioner cannot recommend dismissal or re-deployment, even if this question is asked on the referral form. It is for the employer to decide whether their employee’s capability is so impaired that there is no alternative but to re-deploy or dismiss.
Occupational health standard. The occupational health practitioner should advise which job functions the employee is incapable of performing after considering all possible adjustments and may offer the opinion that the employee is unfit to do the job after there has been a reasonable attempt to make adjustments.
Question 6. "Having released my assessment report to the referring manager, I’ve just received a follow-up question asking me which of the recommended adjustments they should implement."
It is the employer’s responsibility to decide which adjustments are reasonable based upon their detailed understanding of the job, the team and the needs of the organisation.
Occupational health standards. The occupational health practitioner should recommend possible adjustments to the employer for them to discuss with the employee. See section entitled “What Adjustments Are Reasonable” for further guidance.
Question 7. "The employee is adamant that I must not describe a part of their job which is aggravating their health condition or recommend adjustments to a part of their job to reduce a risk to their health."
This is a frequently encountered dilemma which often leaves the Occupational Health Practitioner feeling conflicted. It includes situations where the employee:
- Confides that their line manager is a cause of stress or is likely to be antagonistic towards implementing the adjustments.
- Is concerned that the adjustments will significantly reduce their contribution to the organisation and their career prospects.
Occupational health standard.
The Occupational Health Practitioner should first assess whether this is an exceptional situation where the adjustments are clearly in the employee’s interest, to ensure their safety from themselves or from others (e.g., suicide, self-harm or abuse). If yes, then the Practitioner has an ethical duty to override the employee’s demand and communicate the recommendations to the referring manager.
However, in the vast majority of situations, job adjustments are unlikely to minimise such exceptional levels of risk. So the Practitioner is left with no option but to accede to the employee’s demand and omit the recommendations from the assessment report. But in doing so, the Practitioner should:
- Ensure that the employee has made an informed choice by carefully explaining the risks of not recommending and implementing the adjustments.
- Record clear and specific clinical notes of such advice including the risks which have been explained.
- Satisfy themselves that they will be able to justify their decision to an employment tribunal or regulating body, should the employee regret their instructions at some stage in the future and bring a health related claim against their employer.
Question 8. "I've just been contacted directly by an employee I recently assessed. Their line manager appears to have instructed them to use me as the first point of contact for raising issues about their health at work and for seeking support."
4. Occupational Health Standards. What Adjustments are Reasonable?
(How to use your Occupational Health Assessment Report)
4.1. Obligation to make reasonable adjustments.
If your employee’s health condition meets the definition of a disability under the Equality Act 2010 then you are required by law to “take such steps as it is reasonable” to make adjustments so that your disabled employee can continue to work.
If the health condition does not meet the definition of a disability you might still choose to make reasonable adjustments because of your obligations to take all reasonable steps to:
- Prevent your employee’s health condition from being aggravated or worsened.
- Protect your employee, colleagues or customers from exposure to health and safety risks.
4.2. Types of adjustment.
Adjustments can take three forms.
4.2.1. Providing personal support:
- Providing adapted equipment, such as orthopaedic chairs, height adjustable desks or voice recognition software.
- Temporarily or permanently adjusting working hours (compressed hours, flexible hours, part-time working).
- Allowing absences during working hours for medical treatment.
- Directly funding private medical treatment to restore performance10.
- Providing additional training, supervision or mentoring.
- Moving the place of work to another site or floor or working from home.
- Assigning a fixed work location in an otherwise agile working environment for employees with conditions requiring peace and privacy, urgent access to toilets or specialist equipment.
- Re-allocating certain tasks to other employees.
- Employing someone else to provide assistance such as a; reader, a sign language interpreter or a support worker.
- Transferring to a more suitable vacant position (where they have the skills or can be trained).
4.2.2. Changing the wider workplace:
- Making physical changes to the building such as installing natural daylight bulbs, adjusting doorways or providing ramps.
- Providing information, signage and company intranet content in an accessible format.
- Providing training and support for colleagues, such as neurodiversity awareness training.
4.2.3. Changing organisational policies and procedures and how they are implemented (legally referred to as “provisions, criteria or practice”):
- Sickness absence management triggers11.
- Allowing a carer or friend to accompany the employee at disciplinary meetings.
- Adjusting absence criteria when selecting employees for redundancy.
4.3 Assessing what adjustments are reasonable.
You are not required or expected to make adjustments that are unreasonable but unfortunately, there is little information available (e.g., case law) to help you decide what is reasonable or unreasonable12. Several sources suggest that as your organisation increases in size then so should the range of adjustments which you decide are reasonable13. This is likely to be true but neither the Equality Act nor Employment Tribunal judgements provide you with information to calibrate your organisation’s size against the test of “what is reasonable”. So, here’s a 5 step process that you might follow to ensure that:
- You have gone far enough in making reasonable adjustments.
- You can prove that your decisions and actions are justified.
- Refer your employee for an occupational health assessment.
- Use the occupational health assessment report as the basis for a conversation with your employee where you discuss each recommendation and any other ideas for adjustments and support which the discussion might generate.
- You might also work through the suggested adjustments listed earlier in this Section.
Assess each adjustment against the following criteria:
- How effective is it likely to be; considering the opinions of your employee and occupational health.
- Is it practicable or feasible to implement in your organisation?
- What are its direct costs, relative to its likely effectiveness and affordability for your business. The Disability Rights Commission claim that the average cost of reasonable adjustments is £7514 whilst according to ACAS the average cost is £18415. It might be possible to access external financial support or help (e.g., Access to Work grants).
- Is there a precedent? Has the adjustment been made elsewhere, to a similar job, for a similar health condition in a similar sized company?
- Consult with your employee when working through the assessment criteria.
- Document your assessment and particularly your reasoning for why a possible adjustment is unreasonable.
- Ensure a right of appeal:
- Your policies and procedures should enable your employee the right to appeal against any decision on what adjustments are deemed reasonable.
- Normal policy design criteria apply, including the involvement of an independent authority to hear and review the appeal (e.g., another manager of equal or higher seniority).
- The decision you have taken on each recommendation and its underlying reasoning (especially where you decide that an adjustment is unreasonable or there is a point of disagreement with your employee).
- For agreed, reasonable adjustments; the required actions, who will own them and the target date for their implementation. Bear in mind that:
- Some actions can only be taken by the employee (e.g., contacting your EAP, accessing self-help resources, attending training courses, etc).
- Actions requiring support from others within the team or outside of the team such as HR might require you to take significant ownership in order to avoid aggravating your employee’s health condition (e.g., in instances of stress, autism, etc).
The process of documenting is a powerful vehicle for flushing out any misunderstandings and ambiguities and because things are written down, they are more likely to be actioned. In a worst case scenario, the document should be your friend in the event of; an internal grievance, involvement of legal advisors, recourse to ACAS dispute resolution services or ultimately, escalation to employment tribunal.
- Keep to an agreed schedule for the review meetings. They could become an additional agenda item at regular 121s.
- Hold both yourself and your employee accountable for progressing your respective actions.
- Review the implementation, effectiveness and reasonableness of each agreed adjustment.
- Make changes the Action Plan with agreed actions and implementation dates when it becomes apparent that change is required.
Use the Action Plan as a living document where you record your review meeting conclusions and decisions.
Having followed this process you will need to decide whether your employee is:
- Likely to be able to perform in their job with reasonable adjustments (e.g., the agreed adjustments enable your long-term sick employee to return to work within a reasonable / acceptable timescale).
- Performing in their job after having implemented and reviewed the effectiveness of the action plan.
If the answer is yes then the process has been valuable for all parties. If the answer is no, then legal advice may conclude that you have legitimate grounds for dismissal based upon capability.
Nb: Work Wellness use “performance” to mean; attendance, time keeping, carrying out the activities, accepting the responsibilities, owning the accountabilities and delivering the outputs defined in the employee’s job description.
5. Occupational Health Standards. When Occupational Health and GPs disagree
It is inevitable that the opinion of occupational health and GPs can disagree given their different roles.
5.1 The role of GPs.
Over three quarters of the 1,665 GPs responding to a Department of Work and Pensions survey agreed to feeling obliged to issue fit notes for reasons that were not strictly medical16. When OH requests further detail from a GP the response can often be a verbatim report of what the employee has told the GP and can lack detail and a true opinion.
5.2 The role of occupational health.
Occupational health share the same hippocratic oath as your employee’s GP. They have a duty of care and a professional code to remain impartial and independent at all times.
However, occupational health usually understands the requirements of the employee’s job better than the GP and they will use this understanding, available medical information and the opinions of the employer and employee to produce an independent assessment and recommendations.
5.3 Government guidance.
Considering these roles, Government guidance allows you to make decisions on the basis of occupational health advice rather than the GP fit note17.
“A GP assessment about whether your employee is not fit for work or may be fit for work (and any other advice in the fit note) is classed as advice, and it is for employers to decide whether to accept it. Occasionally, you may believe that your employee is not fit for work when they have been assessed as fit for work by their doctor, or you may think that your employee could do some work when they have been assessed as ‘not fit for work’ by their doctor….. In situations like this, you as the employer are within your rights to gather other evidence about your employee’s fitness for work from other doctors or healthcare professionals. You can choose to give this other evidence precedence over the advice in the fit note”
5.4 Your role as the employer.
Ultimately, you have to decide who’s advice to follow. A number of employment tribunals have upheld an employer’s decision to act according to occupational health advice rather than the GP fit note. The lessons learned from these tribunals are that:
- If your employee has been treated or is being treated by a specialist, your occupational health practitioner should have requested a report from them.
- Occupational health advice should not rely solely upon this report. It should also be based upon an assessment by an occupational health practitioner or by a suitably qualified specialist at the request of the occupational health practitioner.
- The occupational health report should be carefully written, unambiguous, specific and clear.
- The reason(s) for your decision need to be sensible, reasonable and documented at the time of the decision.
6. Occupational Health Standards. Homeworker DSE Assessments.
The HSE are clear that your legal obligations continue to apply when your employee is working from home18. This prompts the following questions from employers:
The HSE state that home DSE Workstation assessments are not required for employees working from home temporarily. Unfortunately, we are unable to find any regulation or legal precedent which defines “temporary” homeworking. The closest approximation is a Unison distinction between “ad hoc” and “regular” homeworking where regular homeworkers spend 50% or more of their contracted hours working from home19.
Question 2: "Must I ensure that a homeworker DSE Workstation assessment is always performed by someone with adequate information, instruction, training and supervision?"
The HSE state that “employers should provide workers with advice on completing their own basic assessment at home” and also provide a self-assessment checklist which they state: “may help employers provide their employees with advice on completing their own basic assessment at home20”. However, guidance from one employment lawyer is that relying on self-assessment without informed training and supervision fails the minimum requirement to adequately control health and safety risks under the Health and Safety at Work Act 1974, because it will allow too many instances where:
- Homeworkers do not conduct the self-assessment, or they fail to identify a risk or they fail to document and report it.
- Employers do not notice when a homeworker has identified a risk or do not take the required action when they do notice.
The precise answer to this question probably awaits clarification when a relevant case finds its way to an Employment Tribunal.
Question 3: "Must I address, at my cost, any aspect of the home DSE Workstation configuration which risks or is causing discomfort or musculoskeletal injury (e.g., a dining chair)?"
One argument is that the Health and Safety at Work Act (1974) only places obligations on employers as far as it is reasonably practicable to do so and that it is unreasonable to expect employers to address every home working arrangement which risks or is causing discomfort and musculoskeletal injury. The same commentator also points to Section 2(2)(d) of the Act which, when read in isolation, limits the employer’s obligations to “any place of work under the employer’s control” which apparently frees the employer from any obligation regarding DSE located in the employee’s home.
An alternative argument is that the wording of the Act reflects an age when homeworking wasn’t a consideration. Recent statements from the HSE suggest that the Act is due for an update:
- “Employers have the same health and safety responsibilities for employees working from home as for any other employees, including the duty not to charge for things done or provided pursuant to their specific requirements. If you have staff working at home, you must still manage the risks to their health from display screen equipment (DSE).21
- “… companies need to make sure their (homeworking) staff have the ‘right kind of kit’ to prevent issues such as back injuries sustained from hunching over laptops.”
- “… if companies need to provide particular kit and facilities for their employees to work from home safely and without injuring themselves, then ultimately they will need to do that and we will take enforcement action if they are unable to do that or choose not to.”
In the meantime it would be unwise to fall back on a literal interpretation of a single, out of date, Act and leave it to employment tribunals to determine whether that was sufficient to comply with all of your legal obligations.
7. Occupational Health Standards. Pre-Placement Health Screening.
7.1. Prohibition on requesting health information.
Section 60 of The Equality Act places a general prohibition on requesting health information during the recruitment process, prior to making a job offer. So you could make a job offer unaware that your new starter has a health condition which:
- Renders them unable to perform a fundamental or intrinsic requirement of the job. Examples might include a Scaffolder with a disability which renders them unable to climb a ladder or an HGV driver who has un-correctable impaired vision.
- Breaches your legal obligation to control risks to the health, safety and welfare of your new starter, colleagues, customers and the public. Examples might include an employee at risk of seizures or a severe allergic reaction which requires urgent action by designated colleagues (e.g., who know where to find and administer your employee’s EpiPen).
- Breaches your legal obligation to make reasonable adjustments for a disability under the Equality Act.
The Equality Act does allow an exception to the general prohibition in order to assess health conditions preventing the applicant from performing an intrinsic requirement of the job which cannot be accommodated with reasonable adjustments.
The Equalities Act also allows other exceptions to the prohibition. They don’t relate to health assessment but we list them here for the sake of completeness:
- If a particular disability is actually an occupational requirement of the job.
- To identify the need for any reasonable adjustments during the remainder of the interview process (e.g., tests and case study exercises).
- To monitor the diversity of people applying for the job.
- To positively discriminate with respect to health, i.e., to treat disabled applicants better than non-disabled applicants.
7.2. Approaches to requesting health information.
- Include the intrinsic requirement as a screening question on the job application form.
- Request the health information at interview.
However, these two approaches are prior to the job offer which means you are prohibited from requesting sufficient additional information to assess whether the intrinsic requirement can be accommodated by reasonable adjustments. Depending upon these approaches alone creates a risk of breaching your legal obligation to identify reasonable adjustments.
Instead, you might also make the job offer conditional upon the outcome of pre-placement screening. This approach has two key advantages:
- You can request additional health information to identify:
- Needs for reasonable adjustments.
- Pre-existence of health conditions which can also be caused or aggravated by the job. This “baseline health information” might prove to be a valuable insurance in the event of any future claims for occupational injury.
- The assessment is conducted by an experienced and qualified occupational health practitioner who is:
- More likely to identify a need for adjustments.
- Able to ensure the information requested complies with other applicable regulation, in particular the Data Protection Act.
7.3. Approaches to pre-placement health screening.
7.3.1. Health Questionnaires.
Questionnaire based screening is:
- Sufficient for lower risk jobs (e.g., office-based).
- Quick and cost effective, especially for; SMEs, companies outsourcing their occupational health needs and organisations with a widely distributed or remote workforce.
- Recommended by the ICO in preference to a medical examination, or as a means of selecting individuals required to undergo a medical examination.
7.3.2. Medical Examinations.
Medical examinations can include:
- Lung function and / or skin sensitivity testing for jobs involving baking, painting or insulating.
- Audiometry testing for jobs on factory production lines.
- Hand arm vibration (HAV) testing for jobs involving the operation of machinery.
- Testing for isocyanate exposure.
Certain occupations are subjected to regulation and codes of practice which can include a requirement for specialist medical examinations. They include:
- Health care professionals.
- Professional drivers (LGV, train, lift truck).
- Flight crew.
- Emergency services personnel (Police, Firefighters, Ambulance, Coastguard).
- Food handlers.
- Confined spaces workers.
- Workers at heights.
- Safety critical workers.
- Offshore crew.
They are typically the highest risks jobs where specialist medical examinations can be worth the investment given the inherently higher materiality of breaches to your legal obligations.
A specialist medical process can take some time to conclude; good practice is to conclude within 6 weeks of your new starter taking up their job.
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